HomeMy WebLinkAbout2002-0127.Persaud.04-04-19 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 2002-0127 2002-0572,2002-1022,2002-1023 2002-1346 2002-1417 2002-2181 2002-2414
2003-0069 2003-0070 2003-0071 2003-0072,2003-0073 2003-3840 2003-3841
2003-3842,2003-3843
UNION# 02C290 02C702,02A743 2002-0530-0018 2002-0530-0017 2002-0530-0029 02D244
2002-0530-0041 2002-0530-0060 2002-0530-0074 2002-0530-0076 2002-0530-0077
2002-0530-0075 2003-0530-0016 2003-0530-0017 2003-0530-0018 2003-0530-0019
2003-0530-0020 2004-0530-0001 2004-0530-0002,2004-0530-0003 2004-0530-0004
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Persaud) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Owen V Gray Vice-Chair
FOR THE UNION GavIn Leeb
Bamster and SOlICItor
FOR THE EMPLOYER F enna MurJ I
Counsel
Management Board Secretanat
HEARING March 29 2004
2
ORDER
[1] The gnevor filed a number of gnevances that were scheduled for hearmg before
me After the first hearmg date, counsel exchanged partIculars ThIs order addresses
matters that arose thereafter, on the second hearmg date
[2] Employer counsel raIsed Issues WIth respect to the tImehness of some of the
gnevances and the arbltrablhty of others After dIscussIOn of those Issues It was agreed
that such of those Issues as remam followmg that dIscussIOn can be dealt wIth followmg
the hearmg of eVIdence (If any) wIth to those Issues and eVIdence wIth respect to the
ments of the gnevances
[3] Counsel for the umon sought productIOn from the employer of varIOUS sorts of
documents All but one of hIS requests were resolved m the course of the hearmg by
agreement of counsel.
[4] The one productIOn Issue not resolved by agreement of counsel concerned the
umon's demand for all documents relatmg to the CIrcumstances that m whIch the
employer had adJusted the work hours of certam named bargammg umt employees at
theIr request ThIs was saId to be relevant to gnevances m whIch the gnevor complams
of the employer's faIlure to adJust her work hours m accordance wIth her request The
umon alleges that the gnevor had a medIcal condItIon that amounted to a dlsablhty
wlthm the meamng of the Ontano HUl11an Rights Code ("the Code"), and that the
adJusted hours were needed m order to accommodate that dlsablhty The umon says
that employer's refusal to adJust her hours of work IS therefore a breach of her nghts
under both the Code and ArtIcle 3 of the collectIve agreement The employer's posItIOn
on those gnevances IS that when the gnevor requested the adJustment to her workmg
hours she dId not provIde any medIcal mformatIOn or opmIOn to the effect that she had
a dlsablhty that reqUIred that, or any, accommodatIOn and, further, that m fact she had
no dlsablhty for whIch such an accommodatIOn was needed.
[5] EVIdence of how others were treated wIth respect to work hours would not assIst
m determmmg whether the gnevor had a dlsablhty at the relevant tImes, nor whether
3
she had adequately mformed the employer that she needed the adJustment m hours of
work m order to accommodate a dIsabIlIty Indeed, the umon does not allege that the
other employees' adJustments of hours about whIch It seeks productIOn were eIther
sought or provIded as accommodatIOn of dIsabIlIty InformatIOn about whether and how
other employees' hours were adJusted at theIr request mIght have been relevant If It
was the employer's posItIOn that adJustmg the gnevors' hours of work as she requested
would have caused It undue hardshIp, wlthm the meamng of subsectIOn 17(2) of the
OntarIO Human RIghts Code The employer does not take that posItIOn, however
[6] Accordmgly, It was apparent that the mformatIOn sought would not be relevant
to any Issue before me, and I dIsmIssed the request that the employer be ordered to
produce It
[7] Some of the gnevances before me allege that the gnevor was treated m a
dlscnmmatory manner on the basIs of race or ethmclty, contrary to ArtIcle 3 of the
collectIve agreement The partIculars provIded by the umon IdentIfy m general terms
the acts or omISSIOns complamed of as constItutmg adverse treatment of the gnevor
They do not, however, IdentIfy any acts or omISSIOns by the employer or anyone actmg
on ItS behalf on whIch the umon may rely to demonstrate dlscnmmatory motIvatIOn or
effect
[8] I confirm the dIrectIOn I gave orally at hearmg that the umon shall provIde the
employer wIth wntten partIculars of any acts or omISSIOns on whIch It may rely m these
proceedmgs to demonstrate that the employer's actIOns were dlscnmmatory m
motIvatIOn or effect, and shall produce any document m the posseSSIOn, custody or
power of eIther the umon or the gnevor on whIch the umon may wIsh rely m provmg
that the adverse treatment complamed of amounts to dlscnmmatIOn on a prohIbIted
ground
[9] The employer shall respond to those addItIonal partIculars m wntmg, IdentIfymg
allegatIOns wIth whIch It agrees, the allegatIOns wIth whIch It dIsagrees and, as to he
latter, the allegatIOns of facts on whIch It relIes The employer shall also provIde the
umon wIth copIes of all documents m ItS possessIOn, custody or power on whIch It may
wIsh to rely m response to the allegatIOns m the partIculars delIvered by the umon
pursuant to paragraph 8 hereof.
4
[10] The umon shall delIver Its partIculars and copIes of documents to the employer
by the close of busmess May 31, 2004 The employer shall delIver Its partIculars and
copIes of documents to the umon by the close of busmess June 30, 2004 Each party
shall file wIth the GSB a copy of the partIculars It delIvers, wlthm one week after
delIvery to the OpposIte party
[11] The partIes may vary any deadlme specIfied m thIS order by WrItten agreement
[12] A party who falls to produce a document or provIde partIculars of an allegatIOn m
accordance wIth thIS order may be precluded from mtroducmg that document or
testImony about that allegatIOn mto eVIdence
[13] The prOVISIOns of thIS order wIth respect to productIOn of documents (other than
paragraph 6) do not preclude an applIcatIOn by eIther party for an order reqUIrmg the
productIOn of addItIonal documents
[14] I note that at the hearmg of March 29, 2004, the umon formally wIthdrew the
grIevances m Board files 2002 1022 and 2002 1417
[15] The partIes agreed that grIevances m Board files 2003 3840, 2003 3841, 2003
3842, and 2003 3843 should be added to the grIevances to be heard by me
[16] The partIes further agreed that the grIevances that remam before me should be
heard m two separate sets of hearmgs, as follows
a) the grIevances m Board files 2002 0127, 2002 2414, 2003 0071, 2003 0072,
2003 0073, 2003 3840, 2003 3841, 2003 3842 and 2003 3843 wIll be heard
together m one set of hearmgs scheduled for October 12 and 22 and
November 2 and 3,2004, and,
5
b) the grIevances m Board files 2002 0572, 2002 1023, 2002 1346, 2002
2181, 2003 0069 and 20030070 wIll be heard together m another set of
hearmgs scheduled for November 17, 18 and 30 and December 1, 2004
Dated at Toronto thIS 19th day of AprIl, 2004