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HomeMy WebLinkAbout2013-2349 Grievor.17-07-04 Decision Crown 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#2013-2349, 2013-2350, 2013-2351 UNION#2013-0579-0034, 2013-0579-0035, 2013-0579-0036 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Reva Devins Vice-Chair FOR THE UNION Katherine Ferreira Koskie Minsky LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING June 21, 2017 - 2 - Decision [1] There are three grievances before me, filed between July 18 and August 29, 2013. The Union alleges that the Employer failed to provide timely and appropriate accommodations of the Grievor’s permanent work restrictions arising from her work related injury; that the Employer disregarded the Grievor’s medical restrictions regarding chemical sensitivities, failed to appropriately accommodate her restrictions and unjustly terminated her employment by deeming her to have abandoned her post when she refused to return to work; and that the Employer failed to file a Record of Employment with Service Canada within the prescribed timeframe following the Grievor’s unjust termination. [2] The Union provided extensive particulars of the allegations and submitted a very lengthy Will Say Statement of the Grievor’s evidence. The Employer has raised several objections to portions of the Will Say Statement and indicated that it has a number of further objections that it will pursue on the next day of hearing. [3] The Employer argued the following sections of the Will Say Statement should be deleted (as agreed during argument, all page and paragraph references are to the original Will Say Statement): a. Evidence regarding a manager’s treatment of two other employees, (SB and LH), who had disabilities and required accommodation: Employer counsel argued that this evidence is not relevant, was not particularised, dates back several years prior to the grievances, includes a significant amount of hearsay, and is essentially similar fact evidence intended to demonstrate that this manager had a - 3 - propensity to act in a certain way when dealing with disabled workers. The Union maintained that I had discretion to admit relevant evidence even when it was not included in the particulars. It submitted that the evidence was not being offered as similar fact evidence but as an aid to understanding why the Grievor responded as she did in dealing with her own accommodation needs. b. Evidence regarding requests made by this same manager to help her son find a job and to obtain supplies for her son’s puppy: The Employer again challenged the relevance of this evidence, argued that it was highly speculative and not set out in the particulars. The Union maintained that it was offered as background evidence and provides context for the Grievor’s subsequent actions and beliefs. c. Evidence of inappropriate phone calls that were made to the Grievor after her accident in 2011 and evidence that her manager accepted gift cards from the Grievor before her accident, but not following: The Employer maintained that some of this evidence is duplicated in other sections of the Will Say Statement, that other portions were not contained in the particulars and are not relevant. The Union suggested that all of this evidence demonstrates an ongoing pattern of harassment and differential treatment; - 4 - d. Evidence regarding the Stage 2 meeting: The Employer argued that this evidence is generally inadmissible, post-dates the grievance, was not included in the particulars and is irrelevant to establishing liability for the matters grieved. The Union stated that the proposed evidence did not include details of settlement offers or discussions at the Stage 2 meeting, but only referred to logistics and the Employer’s conduct when it set up the meeting. It further submitted that this evidence offers further examples of the Employer’s failure to appropriately accommodate the Grievor and additional instances of discriminatory conduct. e. Comments overheard by the Grievor at the GSB that were made by the Grievor’s manager during mediation: The Employer submitted that these are confidential and privileged discussions that are inadmissible at arbitration. The Union accepted the general principle that what is discussed at mediation is not admissible. However it also submitted that I should permit the evidence in this instance because the Grievor alleges that her manager made overtly discriminatory comments that demonstrate further examples of a pattern of conduct that is at the heart of her allegations. [4] The Union also raised a preliminary matter and requested that the Grievor remain anonymous in all Board decisions to protect her privacy in light of the personal - 5 - medical information that will be relied upon by the parties; the Employer did not object. Decision [5] I have considered the submissions of the parties and would allow the Union’s request that the Grievor not be identified in this or subsequent decisions. In my view, this is a reasonable request and entirely appropriate in light of the personal nature of the anticipated medical evidence. [6] With respect to the Employer’s submissions that certain portions of the Grievor’s Will Say Statement should be deleted, I would allow the motion in part. [7] Before addressing the individual objections, I want to be clear that none of the evidence is being excluded solely because it was not included in the Union’s particulars. I agree with the Union’s position that it is important not to convert labour arbitrations into highly technical disputes about pleadings or to focus on form over substance. The parties are not required to include all of the evidence that they intend to rely upon in their particulars, although they must set out their case with sufficient detail that the opposing party will know the case they must meet. Allegations of discrimination or harassment present an especially challenging context for providing particulars as it is often difficult to distinguish between the essential particulars of the allegations that must be provided and the evidence that moreover will establish those allegations. [8] I also accept the Union’s position that Arbitrators retain considerable discretion to admit evidence that was not mentioned in the particulars. In exercising that discretion, however, it is important to consider whether the opposing party was - 6 - previously aware that these incidents were in dispute and whether the passage of time inhibits their ability to fairly respond to the evidence. [9] I would allow the Employer’s motion in part as follows: a. All references to the events regarding the manner in which the Grievor’s manager treated other employees with disabilities will be deleted. The proposed evidence is of a highly personal nature regarding the disabilities of other employees and I am not persuaded that it is relevant. The Union maintained that this was background evidence that sheds light on why the Grievor interpreted the Employer’s actions in regard to her own accommodation in a particular way. Ultimately, I must determine whether the Grievor was properly accommodated, subject to discrimination and harassment, whether she abandoned her position or whether the Employer engaged in other activity that was contrary to their legal obligations. The Grievor’s subjective belief regarding the motivation of the Employer’s behaviour and, more importantly, the evidence on which she based that belief, is of very little assistance to me in determining whether the Union has established the allegations contained in the current grievances. The purported evidence dates from 2008, 5 years before the filing of these grievances, which is well outside the three-year window that is typically permitted to allow the Union to prove a pattern of harassment: OPSEU (Patterson) v. Ontario (Ministry of Children - 7 - and Youth Services), GSB #1989-1546 (2006) (Abramsky); OPSEU (O’Brien) v. Ontario (Ministry of Community Safety and Corrrectional Services), GSB #2003-1881 (2011) (Leighton). If allowed, this evidence would require the Employer to defend against additional allegations that were not identified in the particulars or raised previously. I accept the Employer’s submissions that it would be extremely difficult to mount a defence almost a decade after the events took place. It would also add an unnecessary layer of complexity to these proceedings. In all the circumstances, I have concluded that this evidence should not be admitted. b. For similar reasons, I would order the deletion of evidence that the Grievor’s manager asked her to find a job for her son and supply Ministry property for his puppy. These events pre-date the Grievor’s disability and I have determined that it is not helpful in deciding the issues before me. I appreciate that the Grievor believes that they demonstrate a tendency by her manager to retaliate against employees who do not do as she asks, however, even if proven, it does not tend to prove that the manager’s conduct was connected to the Grievor’s disability or accommodation. c. I would permit some of the evidence that has been tendered with respect to alleged calls made following the Grievor’s accident and her manager’s acceptance of gift cards from the Grievor before her - 8 - accident but not afterwards. This evidence is relevant to the issue of differential treatment, discrimination and harassment and is not duplicated in the later portion of the Will Say Statement. I appreciate that not all of this evidence was referenced in the particulars, however I would nonetheless exercise my discretion to permit it. I would, however, order that paragraphs 53-56 of the original document be deleted as a duplicate of the more detailed evidence found at paragraph 174; d. I have reviewed the evidence regarding the Stage 2 grievance procedure and have concluded that it should be removed from the Will Say Statement. I understand that the Grievor would have been very upset and disheartened by what she perceived as deliberate and ongoing actions that failed to accommodate her permanent disability and demonstrated an animus towards her. Nonetheless, the evidence that she has set out has extremely limited probative value. The evidence arises after the grievances were filed and does not shed any light on what happened before that or establish the allegations that were grieved. Furthermore, the Employer would inevitably feel it had to call evidence from a number of witnesses to rebut the Grievor’s assertions, prolonging an already lengthy hearing. I would note that it is unnecessary for me to decide whether evidence from this stage of the grievance process can ever be - 9 - relied upon, however I have serious reservations about extending the admissibility of evidence from the grievance procedure outside of the limited exceptions previously identified by other arbitrators. e. Finally, all references to any conversations that the Grievor overheard during mediation must be removed. The alleged conversations were between the Employer and their counsel and discussions with the Vice Chair. It is essential that full and frank discussions be encouraged and respected if the mediation process is to be effective. These restrictions are not limited to the exchange of offers as suggested by Union counsel, but clearly extend to discussions that are held in caucus. The parties have a legitimate expectation that these are confidential exchanges and it would be antithetical to the mediation process to admit these private conversations as evidence at arbitration. [10] The Union is therefore directed to delete the above noted sections from the current version of the Grievor’s Will Say Statement. I will entertain the Employer’s further objections at the next scheduled day of hearing. Dated at Toronto, Ontario this 4th day of July 2017. Reva Devins, Vice-Chair