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HomeMy WebLinkAbout2003-3741.Augustine.05-09-30 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 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-3741 UNION# 02-48 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CanadIan Umon of PublIc Employees - Local 1750 (AugustIne) Union - and - The Crown In RIght of Ontano (Workplace Safety and Insurance Board) Employer BEFORE Dan Hams Vice-Chair FOR THE UNION Ian Thompson CanadIan Umon of PublIc Employees FOR THE EMPLOYER WillIam R. Gale Grosman, Grosman & Gale LLP BarrIsters and SOlICItorS and GurJIt Brar Counsel Workplace Safety and Insurance Board HEARING June 15 2005 2 DeCISIon ThIS IS the second Intenm decIsIOn regardIng the admIssIbIlIty of a statement taken In the course of an Internal InVestIgatIOn by the employer of an alleged fraud. The first decIsIOn IS dated May 16 2005 and IS set out at CUPE (Augustine) and Workplace Safety and Insurance Board, GSB #2003-3741 (Harris) The first decIsIOn ruled the statement InadmISSIble as part of the eVIdence of the InVestIgator wIthout callIng the maker of the statement. In sum, the Board held that It was not necessary to allow such hearsay because the maker of the statement was avaIlable to testIfy Further the statement was not relIable on ItS own because, seemIngly It has been repudIated and there IS no IndIcatIOn that the CIrcumstances surroundIng the takIng of the statement are such that cross-eXamInatIOn of the maker would be superfluous The employer has now undertaken to call the maker of the statement as a wItness The umon now obJects to any questIOmng of the InVestIgator regardIng the takIng of the statement. The employer has IndIcated It Intends to explore wIth the InVestIgator the CIrcumstances surroundIng the takIng of the statement for whIch It needs to enter the tape and transcnpt of the statement Into eVIdence The umon submItted that the facts are undIsputed that the maker of the statement, Mr Falby was taken to the InVestIgator's office where he was IntervIewed by the InVestIgator Mr GladIsh, and hIS supenor Mr Moores Mr Falby was not advIsed that he could have umon representatIOn and there was no representatIve of the umon present. Mr Falby was IntervIewed for several mInutes folloWIng whIch a tape recorder was turned on to record the statement, and, at that pOInt, Mr Falby was cautIOned. He went on to make statements that Inculpated the gnevor He has SInce repudIated the statements 3 The umon submItted that the statements made are InadmISSIble because Mr Falby was demed umon representatIOn, whIch IS a substantIve nght under artIcle 1001 of the collectIve agreement. Further the WSIB InVestIgator was a "person In authonty" who faIled to cautIOn Mr Falby that he had the nght to representatIOn pursuant to the Charter of Rights Further the taped statement IS fatally taInted because It IS Inextncably lInked to the statements made before the tape-recordIng started, whIch statements also are InadmISSIble because Mr Falby was demed hIS protectIOn under artIcle 13 01 and the Charter In the alternatIve, If the sItuatIOn as at present permIts the statement to be admItted, a voir dire should be held to determIne whether the statement was made voluntanly The employer submItted that the umon now seeks to bar any use of the statement, whIch goes well beyond ItS prevIOus obJectIOn that It ought not to be Independently tendered for the truth of ItS contents In the very least, the statement may be used to Impeach the credIbIlIty of Mr Falby Both partIes made extensIve submISSIOns on the pOInts raised. In my VIew It IS not possIble to sever off final consIderatIOn of these Issues at thIS early stage Mr Falby IS not the gnevor In these proceedIngs It IS dIfficult to apprecIate at thIS pOInt In the proceedIngs how an abrogatIOn of hIS nght to representatIOn Impacts Mr AugustIne, the gnevor In the Instant matter SImIlarly to embark upon a "VOIr dIre" would be a cumbersome procedural approach not sUIted to labour arbItratIOn. I prefer to hear the eVIdence relatIng to the takIng of the statement and leave It to the partIes at the end of the case to argue the appropnate weIght to be gIven to It In all of the CIrcumstances AccordIngly the employer may contInue to questIOn Mr GladIsh regardIng the takIng of Mr Falby's statement and enter the statement, both the tape-recordIng and the transcnpt, so that we have all ofMr GladIsh's eVIdence In that regard. 4 AdoptIng that approach wIll permIt a companson between the statements he made to Mr GladIsh and the testImony he gIves, thereby permIttIng the Board to properly assess the appropnate weIght to be gIven to the statements by applYIng the pnncIples of necessIty and relIabIlIty Dated at Toronto thIS 30th day of September 2005