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HomeMy WebLinkAbout2002-0994.Cherwonogrodzky et al.03-04-22 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#0994/02, 0995/02, 1328/02,2529/02,2876/02,2973/02,2974/02, 2988/02, 3095/02, 3246/02 UNION# 02A737, 02A738, 02F038, 2002-0202-0001, 2002-0202-0015, 2002-0202-0016, 2002-0202-0017,2002-0202-0018, 2002-0230-0017, 2002-0230-0001, 2002-0202-0003, 2002-0202-0002, 2002-0202-0005, 2003-0340-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cherwonogrodzky et al) Grievor - and - The Crown In RIght of Ontano (Mimstry of FInance) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION GavIn Leeb Barnster and SOlICItor FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat HEARING Apnl 10 2003 2 ORDER [1] The gnevors In these matters are tax a udI tors wIth CA, CMA or CGA desIgnatIOns, who allege that the employer has refused to reImburse them for membershIp dues necessary to mamtam those professIOnal desIgnatIOns The employer's polIcy IS that "Payment of membershIp fees may be authonzed when membershIp man orgamzatIOn IS beneficial to the mmIstry, or when reqUIred, under the prOVISIOns of the collectIve agreement." The partIes' collectIve agreement does not expressly reqUIre reImbursement of these expenses The umon alleges, however, that It IS "beneficial for the mmIstry" for tax audItors to have these professIOnal desIgnatIOns, and that the employer's refusals to pay the costs of these membershIps vIOlated the collectIve agreement because the refusals were, or were the result of, an arbItrary, dIscnmmatory or bad faIth exerCIse of management nghts by the employer m the applIcatIOn of ItS polIcy [2] The employer takes the posItIOn that mamtenance of a current professIOnal desIgnatIOn IS not a term of employment for any of the gnevors, and that m those CIrcumstances the MmIstry of Fmance does not reImburse ItS tax audItors the costs of membershIp m these accountancy orgamzatIOns except when a form of membershIp IS necessary m order for the employee to take educatIOnal courses that the employer reqUIres or encourages the employee to take It demes that the exerCIse of ItS dIscretIOn m that regard has been arbItrary, dIscnmmatory or m bad fmth. Further, It alleges that It applIed ItS polIcy m the manner now complamed of for a number of years wIthout complamt by the umon, and that the umon IS estopped by ItS conduct from now allegmg that ItS exercIse of that dIscretIOn m that manner IS cause for any remedial response at arbItratIOn. 3 Comprehensive Order for Delivery of Particulars and Productions [3] At each of the hearmgs m thIS matter to date, each of the partIes has complamed, through counsel, of the other party's approach to these proceedmgs Employer counsel has complamed, for example, that the umon's repeated mtroductIOn of what the employer charactenzes as "new" allegatIOns makes the umon's case IS a movmg target. Umon counsel has complamed, for example, that the employer has been unduly dIfficult about producmg arguably relevant documents or IdentIfymg whIch of the documents relIed on by the umon as havmg been publIshed by the employer are acknowledged to have been so publIshed There have also been dIsagreements about whether copIes of documents have been provIded by the umon to the employer [4] I do not propose to lIst the complamts exhaustIvely, nor to assess theIr ments After hearmg the submIssIOns of counsel on the questIOn whether I should make such an order, at the hearmg of Apnl 10 I advIsed the partIes that I would be IssUIng a comprehensIve order for delIvery of partIculars and productIOns by both partIes [5] The umon shall provIde the employer wIth wntten partIculars of all of the allegatIOns of fact on whIch It relIes m thIS proceedmg I note that umon counsel has delIvered a number of letters settmg out partIculars, and has also provIded partIculars orally durmg hearmgs to date ThIs order reqUIres that all of the umon's partIculars be set out m a smgle, comprehensIve document [6] Except as hereafter noted, the umon shall provIde the employer wIth copIes of all documents m the posseSSIOn, custody or power of the umon, or of any of the gnevors, on whIch the umon may wIsh to rely m support of the allegatIOns m the partIculars It delIvers As for documents that the umon belIeves It has already produced to the employer m connectIOn wIth these gnevances, the umon need not mclude m ItS productIOns hereunder a further copy of such a document If mstead It mcludes that document m a lIst, to be delIvered wIth ItS productIOns, descnbmg each such document and IdentIfymg by date the wntten correspondence wIth whIch a copy of the document was prevIOusly provIded to the employer The umon need not delIver copIes of, or lIst, documents already marked as exhibIts m thIS proceedmg 4 [7] The employer shall provIde the umon wIth wntten partIculars of the allegatIOns of fact on whIch It mtends to rely m these proceedmgs Its partIculars shall specIfically IdentIfy the allegatIOns m the umon's partIculars wIth whIch It agrees and the allegatIOns wIth whIch It dIsagrees and, as to each allegatIOn wIth whIch It dIsagrees, set out the verSIOn of the facts on whIch It relIes m that regard If the employer mtends to rely on allegatIOns of fact concermng Issues not raIsed m the umon's partIculars - allegatIOns m support of ItS estoppel argument, for example - It shall also set out partIculars of those allegatIOns [8] Except as noted hereafter, the employer shall provIde the umon wIth copIes of all documents m the posseSSIOn, custody or power of the Crown m RIght of OntarIO on whIch It may wIsh to rely m respondmg to the allegatIOns set out m the umon's partIculars or m support of the allegatIOns m ItS partIculars As for documents that the employer belIeves It has already produced to the umon m connectIOn wIth these gnevances, the employer need not mclude m ItS productIOns hereunder a further copy of such a document If mstead It mcludes the document m a lIst, to be delIvered wIth ItS productIOns, descnbmg each such document and IdentIfymg by date the wntten correspondence wIth whIch a copy of the document was prevIOusly provIded to the umon. The employer need not mclude copIes of, or lIst, documents already marked as exhibIts m thIS proceedmg [9] In the event that the employer's partIculars address Issues not raIsed m the umon partIculars delIvered pursuant to paragraph [5], the umon shall delIver m reply partIculars of any allegatIOns of fact on whIch It mtends to rely m connectIOn wIth those new Issues, and shall provIde copIes of any addItIonal documents m the posseSSIOn, power or control of the umon, or of any of the gnevors, on whIch It may wIsh to rely wIth respect to any such Issues [10] WIth respect to each of the acts or omISSIOn alleged therem, each party's partIculars shall mdIcate what was done or not done, when, where, by what means and by whom. It IS not necessary for a party to mclude m ItS partIculars a descnptIOn of the eVIdence by whIch It WIll seek to prove any of ItS allegatIOns of fact The allegatIOns of fact In a party's partIculars should be sufficIently comprehensIve that It would be unnecessary for It to call any eVIdence If the OpposIte party were to admIt that all of the allegatIOns of fact therem were true 5 [11] The umon shall delIver Its partIculars and productIOns to employer counsel by May 12, 2003 The employer shall delIver Its partIculars and productIOns to umon counsel by June 9, 2003 The umon shall delIver Its reply partIculars and productIOns, If any, to employer counsel by June 30, 2002 [12] The partIes may vary any deadlme specIfied m thIS order If they advIse the GSB of theIr agreement m wntmg [13] Each party shall file wIth the GSB a copy of the partIculars It delIvers, wIthm one week after delIvery of those partIculars to the OpposIte party [14] A party who fails to produce a document or provIde partIculars of an allegatIOn m accordance wIth thIS order may not mtroduce that document or testImony about that allegatIOn mto eVIdence m these proceedmgs wIthout leave [15] The prOVISIOns of thIS order wIth respect to productIOn of documents do not preclude an applIcatIOn by eIther party for an order reqUIrmg the productIOn by the other of addItIonal documents. Direction With Respect To Certain Documents Sought By The Union [16] There has been an ongomg Issue m these proceedmgs about whether the employer should produce to the umon any records or other documents It may have concermng the cIrcumstances, If any, m whIch It has reImbursed the costs of membershIps of employees of mmIstnes other than the MmIstry of Fmance I heard argument on that Issue agam at the hearmg of Apnl 10, and deferred my decIsIOn pendmg complIance by the employer wIth an oral dIrectIOn that IS confirmed m the next paragraph of thIS order [17] Except as hereafter noted, the employer IS dIrected to brmg to the hearmg on the next hearmg day all documents m the posseSSIOn, power or control of the Crown m RIght of OntarIO that eVIdence the reImbursement by the employer of CA, CMA or CGA membershIp dues wIthm the last five years, or whIch IdentIfy mdIvIduals reImbursed by name, Job tItle at the tIme, MmIstry, Branch and so on. The employer may, but need not, exclude from the documents produced any whIch relate solely to the reImbursement of mdIvIduals for whom the membershIp was a condItIon of employment, or for whom reImbursement was an entItlement under statute, regulatIOn or collectIve agreement, or 6 for whom the reImbursed membershIp was a prereqUIsIte for enrolment m a course or courses that the employer reqUIred or encouraged the employee to take If, after mvestIgatmg the aVailabIlIty of such documents, counsel for the employer takes the posItIOn that It would be unduly onerous to reqUIre that all or some portIOn of the documents be collected and brought to the next hearmg, he shall come to the next hearmg prepared to explam and support that posItIOn m detaIl. [18] Unless counsel are able to resolve thIS Issue between them after employer counsel has completed the mvestIgatIOn aforesaId, m determmmg whether and to what extent the documents m questIOn are to be produced I wIll take mto account whatever pertment mformatIOn may result from complIance wIth the dIrectIOn set out m the prevIOUS paragraph. Dated at Toronto thIS 22nd day of Apnl, 2003 ~V VIce ChaIr