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Home My WebLink About1996-2693.Tone.00-09-20 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB #2693/96 2739/96 1203/97 1204/97 OPSEU #97D322, 97D362, 97E143 97E144 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BElWEEN Ontano Pubhc ServIce Emplovees Umon (Tone) Grievor - and - The Crown 111 Right of Ontano (Mimsm of the SohcItor General & CorrectIonal ServIces) Employer BEFORE Nimal DIssanavake Vice Charr FOR THE Nelson J Roland GRIEVOR Bamster & SohcItor FOR THE Mehssa Nixon,Counsel EMPLOYER Legal ServIces Branch Management Board SecretarIat HEARING September 20 2000 2 DECISION Tills decIsIon deals With certam further Issues between the partIes relatmg to disclosure and partIculars. (1) ISSUES RAISED BY THE EMPLOYER (a) DIsclosure by umon of financIal mformation. In ItS deCIsIOn dated July 4 2000 the Board ordered, mter alIa, as follows The umon IS ordered to provIde to employer counsel no later than July 24 2000 all mcome tax fihngs made by the gnevor, together With any financIal statements and T4s; any documentation pertalmng to employment msurance benefits received, all of the above covenng the penod June 4 1997 to the present. The employer shall mamtam confidentialIty and shall not use the mformation disclosed for any purpose other than thIS proceedmg. The employer alleged that the umon had failed to fully comply With the Board s order SpecIfically It was alleged that the umon had, (i) only disclosed the mcome summanes page of the gnevor s mcome tax returns and had failed to dIsclose the full returns. (ii) failed to produce any payroll records relating to ills earmngs dunng the penod m question. (iii ) faIled to dIsclose any records relating to earnmgs from sources other than the employer FolloWing mformal discussIOns, Mr Roland advIsed the Board that With regard to (iI) and (in) above, he had been Instructed by the gnevor that no other documents eXIst beyond what has already been disclosed. With regard to (i) above, Mr Roland undertook to dIsclose to employer counsel the complete Income tax returns, mcluding attachments filed, at the earhest possible time (b) Pamculars relating to allegation of bad faIth. Followmg mformal dIScussIons, Mr Roland advIsed the Board and the employer that for most part ItS partIculars relating to bad faIth are those contaIned m exhibIt #5 - The Final WDHP Investigation Report, June 1998 Umon counsel undertook that any elaboration of the saId partIculars and further pamculars, If any not contaIned m exhibIt #5 will be provIded to employer counsel m wnting no later than October 31 2000 If no elaboration or further partIculars are forthcomIng, umon counsel undertook to so advIse employer counsel In wnting no later than October 31 2000 It was further agreed that If pamculars of additional allegations are receIved, the employer would be accorded a broad nght of calhng reply eVIdence to deal With the same. (2) ISSUES RAISED BY THE UNION (a) DIsclosure By letter dated June 30 2000 umon counsel requested that employer counsel provIde disclosure of the folloWing: (1) any and all mformation relating to MimIco Correct1onal Complex s mvestigation of the yard mCIdent the log book mCIdent and the mformal WDHP mvestigation ofMr Tone; 4 (2) mvestigation report(s) by Evelyn Pollack regarding Mr Tone s formal WDHP complamt, especIally wItness statements of each respondent; (3) findings of Human Resources and Development Canada heanngs regardmg Mr Tone s dismIssal, (4) MimIco C C Standmg Orders m place at the tIme of the aforementIOned mvestigations, (5) Adult Institutions Pohcy and Procedures manual m place at the time of the aforementioned mvestigations, (6) any and all memos, documents, pertaImng to yard procedure for MimIco DetentIOn Centre mmates, (7) Employee reference checks used by Lee Anne Ennght for MimIco C C Recreation Officer competitIOn m November 1994 (8) Mimstry of SohcItor General and Correctional servIces traImng manuals, (9) any and all mCIdents of discIphne of other employees pertaImng to mCIdents m detention centre yard, and (10) admImstrative log book Identified m Evelyn Pollack s formal WDHP mvestigation report wmch notes the receIpt of lee Ann Ennght s August 1996 Occurrence Report regarding yard IncIdents It was alleged that the employer had failed to fully comply WIth the request. The employer s posItion With regard to Items 1 and 2 was that, as far as she knew full disclosure had been made She undertook to look for and dIsclose any further matenal, If the umon bnngs to her attention anythmg else, wmch It claIms to be mIssmg from what has been disclosed. 5 There was no Issue relating to Item 3 Employer counsel agreed to make disclosure of the matenal referred to m Items 4 5 6 8 and the matenal referred to m Item 10 If any IS found to eXISt. The employer however resIsted dIsclosure of the matenal referred to m Items 7 and 9 I receIved submIssIons on whether the Board should order disclosure on those two Items. The request In Item 7 IS for disclosure of reference checks consIdered dunng a Job competitIOn m wmch Ms. Ennght, (the employee whose complaInt led to an mvestigation of the gnevor and ms ultimate dismIssal) had partIcIpated m 1994 Mr Roland submItted that Ms. Ennght has had a mstory of behavIOur whIch render her credibilIty questionable In ms VIew the reference checks are relevant because they may contaIn statements useful m Impeacmng Ms. Ennght s credibihty through cross-exammation. With regard to Item 9 umon counsel submItted that how the employer meted out discIphne to other employees In relation to mCIdents m the yard, IS very relevant to the Issue of appropnateness penalty and whether the gnevor was smgled out for harsher treatment. Havmg consIdered the submIssIons, I find that the umon IS not entitled to disclosure under Item 7 The reference checks m question pertam to a Job competition wmch has been gneved separately by the gnevor That gnevance, the Board was advIsed, was before another vIce-chaIr of the Board. The umon IS not pomting to anythmg that It IS aware to be m the reference checks, wmch It claIms to be relevant. The desIre 6 IS to see If anythmg useful IS contaIned therem. That, m the Board S VIew IS a clear case of a fismng expedition. BesIdes, the reference checks would constitute the subJective opImon of mdIvIduals, wmch by themselves are hearsay m nature. The Board IS very unlikely to attach much weIght to such opImons m carrymg out ItS mandate to assess credibihty In all of the cIrcumstances, the umon s request IS demed. With regard to Item 9 also, the request IS a broad and general one The umon IS seekmg disclosure relating to any and all discIplme ansmg out of mCIdents m the yard wmch may have occurred at any time and under any CIrcumstances. If the umon IS able to pomt to any pamcular mCIdents wmch are sImilar to the one m tms case, It may be entitled to disclosure relating to those. That IS not bemg done here The employer IS bemg requested to reVIew the files of each employee to see If any discIphne relating to any kmd of yard mCIdent eXists. ThIS also, IS m the board s VIew a fismng expedition. The umon s request IS demed, subJect to ItS abihty to make a further request relating to any specIfic mCIdent(s) of dIscIphne, wmch It claIms to be relevant due to sImilanty of CIrcumstances. (b) ConverSIOn of gnevor s posItion to a full-time permanent posItion. FolloWing discussIOns employer counsel undertook to provIde to the umon counsel m wnting by September 24 2000 the employer s posItion WIth regard to the gnevor s elIgibIhty to convert to a full- time permanent posItion, and the employer s VIew as to the number of hours worked by the gnevor wmch formed the basIs for ItS posItion m that regard. 7 Upon consent, the Board hereby orders that each party comply wIth the undertakmgs made as set out m tills decIsIon. Dated at Hamilton, tills 22nd day of September 2000 ~p ..:-.,_ 'lor - ,~', '=" ~-=! -- --;~ .. ~- Nimal V DIssanayake, Vice-chaIr