HomeMy WebLinkAbout1993-1489.Glover-McCarthy.94-05-16
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..~ ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DEL'ONTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT ,
REGLEMENT
. BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO: M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2700 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELltCOPIE (476) 326-7396
1489/93, 1925/93
IN THE MATTER OF AN ARBITRATION
Under
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THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
O~SEU (Glover-McCarthy/McCarthy)
Gr~evor
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The Crown in. Right of Ontario
(Ministry of Correctional Services)
Employer
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BEFORE: S. Tacon Vice-Chairperson
W. Rannachan Member
A. Merritt Menilier
FOR THE G. Adams
GRI:EVOR Grievance Officer
ontario Public Service Employees Union '"
FOR THE A. Gulbinski
EMPLOYER Grievance Administration Officer
Ministry of Correctional Services
HEAR:ING April 7, 1994
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INTERIM DECISION
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This decision deals only with the preliminary motion raised by the
union's representative regarding the conduct of the hearing What
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is requested is that the hearing of the merits of the instant
grievances be held in camera, closed to the public and the press
Prior to setting out the submissions of the parties, it is
necessary to sketch the allegations in order to provide the context
in which the motion is brought
The instant two grievances allege sexual discrimination and sexual
harassment against the Ministry of Correctional Services. The
grievor, a correctional officer, was employed initially at the
Toronto Jail and subsequently transterred to the Metropolitan
Toronto East Detention Centre. One grievance was filed in respect
of each location It is not appropr,iate to deal with the
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allegations in detail It is sufficient for the purposes of the
preliminary motion to note the following.
The first grievance, filed in April 1993, concerns alleged improper
remarks and an alleged failure to accommodate the grievor on her
return from maternity leave with respect to her request to be
permitted to express her breast milk at work. The grievance
asserts that inappropriate comments regarding the grievor's
expressing her milk were made by supervisors and by co-workers at
the Toronto Jail Three supervisors were named by the grievor and
were respon(!ents in the internal investigation (see below) .
However, the grievor has refused to identify co-workers whom, she
asserted, verbally harassed her. It is contended that the reason
for this refusal related to the "sub-culture" of corrections
officers which proscr~bes "ratting" on one another The union's
representative also submitted that a union steward suggested to the
grievor that she not identify the co-workers and that reprisals
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might follow if she did so.
The second grievance was filed in October 1993 The grievor was
off work from March 1993 for a period of ti~e Subsequently, she
was the successful applicant in a job competition for a position at
the Metropolitan Toronto East Detention Centre ("Toronto East").
She worked apparently without incident at that location as a
corrections officer for several months until the Fail of 1993 when
two of the supervisors in the initial complaint were transferred to
Toronto East on secondment. The grievor apparently asked that she
not be assigned to work under the pupervision of either until the
conclusion of the independent internal investigation and first
grievance. Allegedly, she was informed that could not be
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guaranteed because of scheduling difficulties. At that point, the
grievor left work on sick benefits.
Counsel for the employer submitted that the grievances would not be
sustained on the evidence and that the grievor had not been
sUbjected to harassment and discrimination because of her gender
and/or pregnancy. Counsel asserted that that the employer sought
I to accommodate the grievor in her request and did not condone
(alleged) remarks by co-workers. However, without names from the
grievor, it was not possible to conduct an independent internal
investigation on this aspect of her complaint. It is not necessary
at this juncture to outline the employer's position in detail with
respect to the asserted misconduct except to note the following
Counsel indicated that some of the allegations of misconduct had
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been raised only recently. Further, the Ministry did conduct an
independent internal investigation in accordance' wi th its Workplace
Discrimination and Harassment Prevention Policy ("WDHp"). That
investigation concluded that the allegations against three named
) respondents (supervisors) of harassment were not substantiated.
(The report did note one inappropriate comment by one respondent
which was not categorized as harassment.) Counsel indicated that
report was completed prior to the transfer of the two supervisors
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to Toronto East.
It should be noted that the grievor's application for Long Term
Income Protection ("LTIP") is in process Her WCB claim for
stress-related disability was rejected at the first level and is
under appeal There is also an application for UIC sick benefits
in progress
( The Board now turns to the submissions with respect to the conduct
of the hearing.
The union's representat~ve asserted that, in the circumstances, the
hearing should be in camera, barred to both press and public It
was contended that the nature of the allegations would otherwise
attract publicity which would identify the grievor and, given the
asserted sub-culture of correctional officers, would subject her to
negative commentary or other reprisals by co-workers While it was
recognized that the grievor could not be entirely insulated, it was
asserted the Board had the jursidiction to make such an order and
should do so. It was suggested that an in camera hearing might
well increase the effectiveness of any remedy which might be
ordered, would "buy time" to facilitate the reintegration of the
grievor into the workplace, particularly given her medical state
and be supportive of the Ministry's policy forbidding workplace
discrimination and harassment. with respect to the grievor's
1 medical condition, the Board was informed that she was under
medical care and had been advised not to attend the hearing on the
preliminary motion. Further, the union's representative argued the
absence of an in camera hearing would undermine the effectiveness
of an order excluding witnesses.
In the alternative, it was contended that the award should preserve
the grievor'~ identity as far as poss~ble. For example, she should
not be referred to by name. Nor should the workplace be
specifically mentioned. During the hearing, anyone attenc;ling
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should be prohibited by the Board from reporting on the proceedings
i until after the award issued and, even then, there should be a bar
on identifying the grievor by name The union's' representative
cited the Bell Cairn Report and the publicity which preceded and
followed the report as having attracted sufficient attention to the
union and employer What was asserted was that a period of repose
was required to permit the parties to conduct their "pro-active"
work to address the problems raised in the Report. publicity
regardin<p these proceedings, it was argued, would be
counterproductive of the parties' efforts Finally, it was
asserted that the Board had statutory authority to give the orders
sought.
Cases cited in support included: Royal Oak Mines Inc. (1992), 25
L.A.C. (4th) 26 (Bird); Air, Canada (1978), 18 LAC. (2d) 113
(Frumkin) ; Air Canada (1977), 14 L.A.C. (2d) 309 (H D. Brown) ;
( Crown in Right of ontario (Ministry of the Attorney General)
(unreported, GSB File No. 3159/90, April 12, 1992) (referred to as
"Breen"); Crown in Riqht of ontario (Ministry of correctional
Services) (unreported, GSB File No. 212/78, July 4, 1979) (referred
I to as "Ralph"); Crown in Right of ontario (Ministry of Correctional
I Services) (unreported, GSB File No 557/81, July 21, 1982)
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(referred to as "Klonowski"); Crown in Right of Ontario (Ministry
of Correctional Services) (unreported, GSB File No. 2421/92, June
21, 1993) (referred to as "Knight"); Crown in Right of ontario
(Ministry of Government Services) (unreported, GSB File No. 268/83,
Novemqer 22, 1983) (referred to as "Anonymous")
Counsel for the employer indicated that the employer was neutral as
to whether the hearing was "open" or "closed" It was acknowledged
that the Board was a creature of statute and had the authority to
control its hearing procedure in this regard However, counsel
, ! submitted that the order should not selectively protect only the
grievor's identity if such an order were to be given. That is, it
was contended that other persons' risked damage to their reputations
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even if the allegations were eventua~lY not substantiated
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One other matter must be dealt witti at this point During the
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parties' opening statements, an issu~ arose as to the sufficiency
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of particulars from the union regarding its allegations It was
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agreed that the Board would note in this decision that the union is
directed to file all particulars, ~ncluding the naming of all
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persons against whom allegations ar~ made Should that not be
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complied with, the union may well, be precluded from adducing
evidence, through the grievor or oth~r witnesses, with respect to
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matters which are not particularize~ This requirement is not a
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technicality but goes to the heart of; the adjudicative process. A
complaint does not "evolve" during a pearing. All parties must be
aware of all allegations of misconduct or impropriety in order to
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properly prepare their respective ca~es.
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There was no dispute that this Boar~ possesses the authority to
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grant the order requested and its de~ision therein is a matter of
discretion to be exercised after balancing the competing
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considerations. We concur with the a~alysis expressed in the Ralph
decision that the party seeking a: pri vate hearing, or other
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restrictions on identifying the perso~s involved, bears the onus of
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establishing compelling grounds for such an order. It is useful to
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quote the following passage from that decision, at page 4:
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". .we think that in principle a hea~y onus lies on any party who
wishes to close a hearing of a sta:tutory body like this Board
[speaking of the Grievance Settlement Board] It is the ~allmark
of procedural fairness that justice manifestly be seen to be done.
That can only occur if the public andlthe press have full access to
the proceedings; the best safeguard lagainst the arbitrary use of
power or merely careless injustice ,is the full light of publi'c
scrutiny Public hearings can have their costs, of course, but
those costs must be particularly heavy to overweigh the primary
public interest in openness " i
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The arguments raised by the union in support of an in camera
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hearing (or alternative restrictions on reporting and/or
identifying persons or the workplace during, subsequent to, or in
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the Board's decision), involve considerations both institutional
and personal to the grievor These categories are dealt with in
turn.
On the institutional level, the union's representative points to
, the Bell Cairn Report and the publicity surrounding the events in
question as supporting the restrictions sought in order to provide
the union and the employer with a "period of repose" in which to
develop and implement "pro-active" measures to combat the conduct
and att~tudes impugned in the Report Without such restrictions,
it was asserted, press coverage may well exacerbate the
relationship between the parties, including the next collective
bargaining negotiations. The union's representative emphasized
that simila;r arguments were persuasive in Air canada, supra
( Frumkin) , Air Canada, supra (H.D. Brown) and Royal Oak Mines,
supra
wi th respect, we are not persuaded that the reasoning in those
cases is apposite in the instant circumstances. The two grievances
befqre this Board involve a single grievor. The misconduct alleged
concerns several remarks address~d to the grievor regarding the
expression of breast milk at the workplace for her nursing child
and an alleged failure to accommodate her wish to so express her
brea~t milk. In the Board's view, to cite the Bell Cairn Report is
to dramatically/distinguish the circumstances therein with those in
the instant case. The allegations in the Legislature and the press
(of which this Board may take judicial notice), the institutional
implications for the parties and the public interest which resulted
in the Bell Cairn Report are simply not present here. We are not
satisfied that the collective bargaining relationship of the
parties or their "pro-active" measures intended to address the
concerns in the Bell Cairn Report would be jeopardized by a
decision that the instant grievances be heard in the usual context
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of a public hearing Thus, the institutional arguments do not
support an in camera hearing (or the alternative restrictions
sought) .
On a personal level, the union ,is. representative argued that the
restrictions desired would accomplish several aims the risk, in
view of the subculture of corrections officers, of reprisals
against the grievor would be lessened~ the grievor's privacy would
be protected~ the effectiveness of an exclusion order regarding
witnesses would be increased~ the efficacy of a remedial order
would be enhanced through a smoother reintegration of the grievor
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into the workplace. In this way, it was contended the WDHP policy
would be enhanced.
Firstly, we would note that the instant request differs
significantly from the circumstances in Knight, supra, wherein the
Board ordered that the identities of inmate witnesses were
protected from public disclosure (see also, comments in Ralph.
1< supra at page 5). A witness may well be compelled to testify in a
, proceeding to which he/she is not a party. Where that witness is
an inmate of a correctional facility, an order that the identity of
such persons remain confi?ential is understandable The disclosure
of the identity of a non-party witness adds nothing to the pUblic
interest in an open hearing (in contrast to the substance of the
testimony which may properly be reported) and such disclosure may
well be highly embarrassing. Likewise, the reasoning of the Board
in the Anonymous case, supra, is patently reasonable given the
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highly personal nature of the medical evidence attesting to the
grievor's mental state and the Board's conclusion therein that the
grievor did not possess the mental capacity to be held responsible
for his actions.
In the Board's view, similar considerations do not exist in the
instant grievances. The nature of the allegations are not such as
to raise the spectre of ruined personal reputations, regardless of
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the outcome, if the proceedings are held in the usual manner If
the grievance is upheld, the grievor will be vindicated; if not,
the employer and the named supervisors will be exonerated The
Board is not persuaded that the efficacy of its remedy will be
detrimentally affected by conducting an open hearing Indeed, the
Board considers that a closed, secret proceeding is less likely to
enhance the aims of the parties that workplaces be free from
discrimination and harassment based, inter alia, on gender.
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It must be emphasized that there is no public interest favouring an
in camera hearing ( or the other restrictions). In the instant
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case, if the alleged remarks are substantiated, they would reflect
negatively on the persons making the remarks, not the grievor. If
the alleged failure to accommodate the grievor is proved, the
Board's remedial order would address the insta~t circumstances and
may well assist the parties more generally in similar situations
Being identified as a nursing mother is not likely to discourage
women from alleging conduct which contravenes the collective
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agreement and does not outweigh the usual considerations favouring
openness.
There is no co~pelling medical evidence before the Board which
would warrant an in camera (or otherwise restricted) hearing The
grievor is said to be under medical care and was advised not to
attend argument on the preliminary motion At this point, her
claim before the weB has been re j'ected . Other claims, and an
appeal regarding the weB matter, are in process. There is nothing
in the instant case which would sustain the extraordinary
restrictions sought by the union.
( The Board does not regard the union's assertions with respect to
the subculture of corrections officers as proper considerations in
determining whether the hearing should be in camera or otherwise
restricted It may well be that the grievor is reluctant to
identify co-workers as having made certain remarks about her
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expressing breast milk at the workplace.( It is likely that similar
reluctance against naming co-workers is felt by employees in any
work setting. But, even if, as asserted, the subculture against
"ratting" is ~articularly strong in a correctional facility, that
does not support an argument for a change in the usual manner in
which hearings are conducted. The union has been put on notice
regarding particularization of its allegations. If the grievor
chooses to restrict her complaints to the three supervisors named
earlier, that may well have an impact on the evidence which made
properly be adduced in support of the alleged violation of the
collective agreement. ~hat decision does not go to the issue of an
in camera hearing. In that regard, it should be noted that, in the
Klonowski case, supra, cited as supporting the existence of the
subculture, the persons and workplace were openly identified.
For the foregoing reasons, the Board is not persuaded that the
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request for an in camera hearing (or other restrictions) should be I
granted in the instant case, given the allegations and submissions.
The Board\ sees no compelling reason to conclude that any usual
orders regarding the exclusion of witnesses would be, undermined if
the union's request is not granted, nor that its remedial authority
would be impaired should the grievances ultimately be upheld. The
Board need not reiterate its conclusions regarding the impact of an
open or closed hearing on the institutional interests of the
parties or the personal circumstances of the grievor.
In conclusion, the Board would return to the sentiments expressed
in Ralph, supra: ".. It is the hallmark of procedural fairness that
justice manifestly be seen to be done That can only occur if the
public and the press have full access to the proceedings; the best
safeguard against the arbitrary use of power or merely careless
injustice is the full light of public scrutiny" The allegations
in the instant case raise issues of sexual discrimination and
harassment. The workplace is a pUblic institution. In the Board's
view, the public interest in those workplace practices is manifest
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and is not outweighed, in the instant case, by arguments which
would favour an in camera or otherwise restricted hearing
Accordingly, the union's request is hereby denied This matter is
to be continued on! the dates previously set, namely, August 30 and
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September 1, 28, 29 and 30, 1994.
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DATED this ~6th day of June, 1994.
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I Susan Tacon, Vice-Chairperson
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I w. Rannachan, Union Member I
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A Merritt, Employer Member
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