HomeMy WebLinkAbout2003-1520.Gillis et al.05-12-07 Decision
Crown Employees Commission de Nj
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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2003-0248-0179
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(GIllIs et al) Union
- and -
The Crown In RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE RandI H. Abramsky Vice-Chair
FOR THE UNION Ed Holmes
Ryder Wnght Blair & Holmes LLP
BarrIsters and SOlICItorS
FOR THE EMPLOYER Sean Kearney
Semor Counsel
Mimstry of Government ServIces
HEARING December 2, 2005
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DeCISIon
There are approxImately fifty gnevances before the Board, filed by ten CorrectIOnal
Officers, as a result of dIscIplIne Imposed on them by the Mimstry In July 2003 five of the
gnevors were dIscharged, and three were suspended In regard to an alleged exceSSIve use of
force IncIdent agaInst an Inmate on October 18 2002 In addItIOn, two other gnevors were
suspended for a related IncIdent on May 23 2003 InvolvIng alleged threats made to a matenal
wItness to the October 18 2002 IncIdent. The Umon has obJected, as a prelImInary matter to the
admIssIbIlIty of the InVestIgator's report as well as the eVIdence of the InVestIgator as It relates to
hIS report, In thIS proceedIng.
Facts
After an alleged assault on an Inmate on October 18 2002, the Mimstry undertook an
InVestIgatIOn of the alleged IncIdent. The InVestIgatIOn report consIsts of four volumes It
contaInS an executIve summary wItness statements, photographs, a sIte map a summary of the
wItness statements, an exhIbIt regIstry and the findIngs and conclusIOns of the InVestIgator
concernIng each of the gnevors A further InVestIgatIOn was undertaken In regard to the alleged
May 23 2003 IncIdent, and the InVestIgatIOn report deals wIth that matter as well The Mimstry
relIed on thIS InVestIgatIOn report to Impose dIscIplIne on the gnevors
Positions of the Parties
The Umon obJects to the admIssIbIlIty of the InVestIgatIOn report, and the eVIdence of the
InVestIgator regardIng the report, on a number of bases FIrst, the Umon argues that the report IS
a hearsay document and should be excluded on that basIs Second, It asserts that It contaIns the
3
OpInIOnS and conclusIOns of the InVestIgator about what occurred and IS therefore not relevant to
these proceedIngs ThIrd, It argues that relYIng on the conclusIOns and findIngs contaIned In
report would Improperly usurp the role of the Gnevance Settlement Board (GSB) Fourth, It
asserts that the report IS hIghly preJudIcIal to the gnevors and would consequently taInt the
decIsIOn-makIng process Itself as well as undermIne the appearance of holdIng a fair heanng. In
ItS VIew JustIce must not only be done, It must be seen to be done
The Umon acknowledges that some parts of the report may be admIssIble, at the
appropnate tIme, such as the wItness statements But It asserts that other parts of the report,
partIcularly the InVestIgator's findIngs of fact and conclusIOns whIch refer to the InVestIgator's
InterpretatIOn of employer polIcIes, the CnmInal Code and even the College of Nurses'
standards, are not admIssIble and go to the very heart of what thIS Board must decIde In the
Umon's VIew the Employer must call dIrect, VIva voce eVIdence to prove ItS case, whIch IS then
subJect to cross-eXamInatIOn, and should not be allowed to rely at all on the InVestIgator's report.
In support of ItS posItIOn, the Umon cItes to Re British Columbia Institute of Technology
and British Columbia Government Employees Union (1995) 47 L.AC (4th) 99 (BlasIna) and
Re Loyalist College and OPSEU unreported decIsIOn ofM. Bendel dated July 19 1996
The Employer argues that InVestIgatIOn reports, lIke the one at Issue here, are regularly
admItted Into eVIdence at the GSB and relIed upon. It submIts that there are no GSB decIsIOns
whIch hold that such reports are InadmISSIble and entItled to no weIght by the Board In ItS VIew
the GSB lIke any other board of arbItratIOn, regularly admIts InVestIgatIOn eVIdence and
determInes, at the end of the day what weIght, If any to gIve to It. AdmIttIng such eVIdence, It
submIts, does not usurp the role of the Board or In any way taInt the process It submIts that It IS
4
preposterous for the Umon to assert that the admIssIOn of the InVestIgatIOn report wIll prejUdICe
the Board.
Instead, the Employer argues that the touchstone for admIssIbIlIty IS relevance It asserts
that the InVestIgator's report IS clearly relevant and matenal because It IS the basIs upon whIch
the Mimstry's decIsIOns regardIng dIscIplIne were made It pOInts out that the onus IS on the
Employer to establIsh Just cause, and It contends that the InVestIgator's report IS an Important
element whIch provIdes a roadmap to ItS InVestIgatIOn and ItS determInatIOns
The Employer further asserts that under the Labour Relations Act hearsay eVIdence IS
admIssIble at arbItratIOn and that It IS not relYIng exclusIvely on the InVestIgatIOn report. It
asserts that It wIll be callIng dIrect VIva voce eVIdence to support ItS case, as well as callIng the
InVestIgator The Umon and the gnevors, the Employer submIts, wIll have a full and fair heanng
of the Issues, WIth the nght to cross-eXamInatIOn.
In support of ItS contentIOns, the Employer cItes to OP SEU (Hastie et al.) and Ministry of
Natural Resources (2003), GSB No 0542/01 (Petryshen) OPSEU (Wickett et al.) and MinistlY
of Natural Resources (2005) GSB No 2001-0542 (Petryshen) Mehan and Ministry of Finance
(2005), PSGB No P-2002-0004 (LeIghton) Re Manitoba Telephone System and International
Brotherhood of Electrical Workers, Local 435 [1998] C.L.AD No 910 (Chapman) appeal
dismissed, International Brotherhood of Electrical Workers Local 435 and Manitoba Telecom
Services Inc (2002) 169 Man. R (2d) 290(MBQB) Re Fraser Health Authority (Surrey
Memorial Hospital Site) and Hospital Employees Union (2004) 129 L.AC (4th) 302 (Dorsey)
Re Kimberly-Clark and I WA.- Canada, Local 1-92-3(1996), 66 L AC (4th) 266 (Bendel)
5
Decision
HavIng carefully consIdered the submIssIOns of the partIes, I conclude that the
InVestIgatIOn report and the eVIdence of the InVestIgator about hIS report are admIssIble
The pnmary reason that the report, and the eVIdence of the InVestIgator IS admIssIble IS
because It IS relevant. The report forms the basIs of the Employer's decIsIOns In regard to the
dIscIplIne of the gnevors It reveals the InVestIgatIOn conducted by the Employer and how the
Employer arnved at ItS decISIOn to dIscIplIne the gnevors ThIS Includes the findIngs and the
conclusIOns of the InVestIgator whIch the Umon IS free to attack and challenge as Incomplete
erroneous or Improper among other potentIal challenges
In so rulIng, I note that InVestIgatIOn reports are routInely admItted Into eVIdence before
the GSB and relIed upon In the Board's decIsIOns ThIS can be clearly seen In the GSB cases
cIted by the Employer It may well be that the Umon dId not object, In those cases, to the
admIssIbIlIty of the InVestIgatIve reports But the Board's references to the InVestIgatIOn reports
surely IndIcates theIr relevancy to the Issues In dIspute OPSEU (Hastie et al.) and Ministry of
Natural Resources, supra, Mehan and MinistlY of Finance supra Other arbItrators, as well,
have admItted InVestIgatIOn reports Into eVIdence Re Fraser Health Authority (Surrey Memorial
Hospital Site) and Hospital Employees Union, supra' Re Manitoba Telephone System and
International Brotherhood of Electrical Workers, Local 435 supra
As the Umon argues, the OpposIte conclusIOn was reached In Re British Columbia
Institute of Technology and British Columbia Government Employees Union, supra In that case,
the gnevors were gIven a one-month suspenSIOn for alleged harassment, based on the report and
recommendatIOns of an outsIde InVestIgator hIred by the Employer At the arbItratIOn heanng,
6
the Employer sought to Introduce the InVestIgatIOn report as an exhIbIt, and the Umon objected
to Its admISSIbIlIty
The arbItrator determIned that the InVestIgatIOn report should not be admItted Into
eVIdence He determIned that the report was not "evIdence of the allegatIOns agaInst the
gnevors" and "not matenal and probatIve In respect to the alleged gUIlt of the gnevors" SInce It
was "a summary of her OpInIOn of the facts and the gUIlt of the gnevors" He ruled that It "cannot
be a SubstItute to any degree" for the conclusIOns of the arbItratIOn board and "[i]f accepted the
eVIdentIary process would be tarnIshed, and merely because of ItS potentIal to Influence the
arbItrator hIS decIsIOn would be tarnIshed too" The report was prejUdICIal, In hIS VIew because
of ItS conclusIOns and "because of the sImple SuspIcIOn It would necessanly create" SInce one
would wonder If hIS "determInatIOns of fact were somehow Influenced by a non-probatIve
document expreSSIng OpInIOnS on exactly what It IS that I have to decIde" Any probatIve value to
the report was "outweIghed by the danger of prejUdICe" He also stated that the report should not
be admItted "because It would tell me how to decIde the case" when that determInatIOn was to be
made by hIm "from the eVIdence, and not a report about the eVIdence" (47 LAC (4th) at 104-
105)
With respect, I find that I cannot agree wIth thIS analYSIS In my VIew the InVestIgatIOn
performed by the Employer and whIch forms the basIs for ItS decISIOns IS relevant. The report
contaInS wItness statements and photographs whIch the Employer relIed upon. It also relIed
upon the findIngs and conclusIOns of the InVestIgator Those findIngs and conclusIOns, to be
clear are not bIndIng on me My determInatIOn of whether the Employer has establIshed just
cause wIll rest on the eVIdence produced at the arbItratIOn heanng, not the findIngs of fact and
conclusIOns of the InVestIgator But that does not mean that the InVestIgatIOn report IS Irrelevant
7
and InadmISSIble The InVestIgatIOn undertaken by the Employer and how the Employer arnved
at ItS deCISIOns IS relevant to these proceedIngs
In my VIew admIttIng the InVestIgatIOn report does not taInt the arbItratIOn process or
render the Board's ultImate determInatIOn suspect. That VIew ImplIes, Incorrectly that the Board
would be unable to come to ItS own conclusIOns about the weIght to be gIven the eVIdence A
sIgmficant part of the job of an arbItrator - In every case - IS to sort through eVIdence and
determIne what eVIdence IS cogent and therefore should be relIed upon, and what eVIdence
should be Ignored or gIven lIttle weIght. The fact that an arbItrator admIts eVIdence whIch, at the
end of the day IS gIven no weIght does not taInt the arbItratIOn process Although I agree wIth
the Umon that JustIce must not only be done, but be seen to be done, I cannot agree that
admIssIOn of the InVestIgatIOn report would lead a reasonable person to conclude that JustIce has
not been done
For the same reasons, I cannot agree that the InVestIgatIOn report should not be admItted
because of ItS potentIal "danger of prejUdICe" EVIdentIary prejUdICe IS much more sIgmficant In
JUry tnals than when a case IS heard by a judge alone, or by a professIOnal arbItrator AgaIn,
arbItrators routInely weIgh eVIdence, and are capable of dOIng the same In regard to an
InVestIgatIOn report.
I am also not persuaded that the InVestIgatIOn report should not be admItted under the
analysIs of the board In Re Loyalist College and OPSEU supra. In that case, dIscIplIne was
Imposed folloWIng the InVestIgatIOn and heanng of students' complaInts by "Boards ofHeanng"
establIshed pursuant to College polIcy on the subject of dISCnmInatIOn and harassment. The
8
reports were admItted Into eVIdence, and the Issue before the board of arbItratIOn was what
weIght should be gIven to the reports In decIdIng whether the dIscIplIne Imposed was warranted.
The College had urged the board to accept the findIngs and conclusIOns of the "Boards of
Heanng" and to rely on them for the truth of theIr content. (DeCIsIOn, p 5) The Board rejected
that approach, statIng that defernng to the findIngs of such an InqUIry would dIlute the statutory
and contractual nghts of employees and the umon In cases of dISCnmInatIOn and harassment.
(DecIsIOn at p 14) The board of arbItratIOn therefore determIned that It would not be
"appropnate for us to consIder theIr conclusIOns In comIng to our own." The dIssent argued that
the Board's determInatIOn was premature and that the decIsIOn of what weIght, If any to gIve to
the reports should be determIned at the end of the day
In my VIew because the reports were admItted Into eVIdence, the decIsIOn cannot and
does not stand for the proposItIOn that they are InadmISSIble Rather the Board there determIned
that It would make ItS own deCISIOn about just cause, based on ItS own assessment of the
eVIdence, rather than accept and rely on the conclusIOns of the Boards of Heanng. That IS what
thIS board wIll do as well - make ItS own determInatIOn of whether the Employer had just cause
I belIeve, however that the dIssent was nght that the determInatIOn of weIght to be gIven the
report, If any should be done at the end of the day after heanng all of the eVIdence, rather than
at the start of the heanng.
I also do not agree that the InVestIgatIOn report should not be admItted because It IS,
essentIally a hearsay document. The report would only be hearsay If the Employer IS relYIng on
the content of the report for the truth of the matters asserted. That IS not clear In the record, SInce
the Employer stated that It wIll be callIng VIva voce eVIdence to establIsh ItS case and would not
9
be solely relYIng on the report. Furthermore, hearsay eVIdence IS admIssIble In arbItratIOn - wIth
the weIght, If any to be determIned based on IndICIa of relIabIlIty and necessIty
AccordIngly for all of the foregoIng reasons, I conclude that the InVestIgatIOn report, and
the InVestIgator's eVIdence concermng hIS report, IS admIssIble In thIS proceedIng.
Issued at Toronto thIS 7th day of December 2005