HomeMy WebLinkAboutGandzi 02-06-17Page 1
Case Name:
Canadian Blood Services v. Ontario Public Service
Employees' Union, Local 5103 (Gandzi Grievance)
IN THE MATTER OF an arbitration regarding: grievances
of Milena Gandzi
Between
Canadian Blood Services (hereinafter referred to as
"the employer"), and
Ontario Public Service Employees' Union - Local 5103
(hereinafter referred to as "the union")
[2002] O.L.A.A. No. 427
108 L.A.C. (4th) 385
File No. MPA/Y200899
Ontario
Labour Arbitration
F.D. Briggs, Arbitrator
June 17, 2002
(40 paras.)
Evidence -- Admissibility and weight -- Medical records
Evidence -- Privilege -- Solicitor-client privilege
Process and Procedure -- Arbitration -- Particulars
Process and Procedure -- Arbitration -- Preliminary objections
The employee submitted a grievance as a result of an altercation with one of her supervisors which
left her mentally unfit to work for a number of weeks. On her grievance form she made a number of
allegations regarding the supervisor's activity on the day in question and also wrote the wrong sec-
tion number of the collective agreement dealing with a healthy and safe workplace. The employer
Page 2
made a number of preliminary objections to the case which the arbitrator dealt with in this ruling.
The three objections in addition to the point on the insertion of the wrong section of the collective
agreement were: that the union was trying to expand the scope of investigation beyond what was
claimed in the grievance; that the union was not entitled to the employer's notes on the incident be-
cause they were subject to litigation privilege; and that the introduction of medical evidence from
the grievor's doctor should only be allowed if a breach of the collective agreements was proven.
HELD: Preliminary objections denied in part. The arbitrator had the authority to amend the griev-
ance claim when the issue was only a technical error because to rule otherwise would be both wrong
and a disservice to the arbitration process. With regard to the issue about the expansion of the com-
plaints against the employer, the collective agreement specifically required details regarding the is-
sues in contention and in this case only the specific actions on July 3 were noted. As a result only
that issue could be dealt with at the arbitration. On the issue of document production the arbitrator
held that documents would be produced only if they dealt with the July 3 incident. There was no
issue of litigation privilege because at the time they were prepared the employer did not know, nor
did it anticipate that there would be litigation. Finally on the question of the grievor's medical evi-
dence its introduction would be allowed and the arbitrator would decide at that time its relevance.
Appearances:
Frances R. Gallop, for the employer.
Ed Majewski, for the union.
1 The grievor, Ms. Gandzi, a clinic assistant 1 filed a grievance dated July 5, 2001 that stated:
Breach of contract and CBS ER Policies and Procedures on July 3, 2001. My su-
pervisor Mrs. J. Jamarsz violated the contract - Article 1A.01 - discrimination
and harrasment (sic) Article 12.08 - Schedule in advance (proper notification)
Article 23.04 - Health and Safety in the workplace Article 25 - sick benefits.
Verbally assaulted Article 4.04 - Canadian Blood Services Policies and Proce-
dures Settlement Requested - Written apology from Mrs. Jamarsz. Compensated
for time lost, credited for it, don't lose sick days from my sick bank. Mrs.
Jamarsz attend an interpersonal skills and management course and she should be
discipline (sic).
2 The first day of hearing Mr. Majewski, for the Union asserted in his opening statement that
while the grievance was filed after an incident that occurred on July 3, 2001 it was the Union's posi-
tion that the specific incident was the culmination of a host of ongoing confrontations. It intended to
call evidence in this regard in an effort to convince the Board of the pattern of inappropriate behav-
iour from Ms. Jamarsz toward the grievor. There were a variety of allegations including discrimina-
tion, improper scheduling and unsafe workplace that caused the use of sick leave benefits. The Un-
ion indicated that the grievance form improperly alleged a violation of article 23.04. The correct
article number dealing with health and safety is 30.
Page 3
3 According to the Union, the grievor is an employee with eight years of service and without
discipline on her record. However, her situation at work altered when she got a new supervisor. The
circumstances giving rise to the grievance began with the posting of the work schedule that included
the Canada Day Weekend in 2001. The grievor had not been scheduled to work on that weekend but
approximately one week before July 1st she found that her schedule had been changed. Ms. Gandzi
could not attend at work due to child-care arrangements and she explained this to the Employer. She
offered to do the necessary work in advance. When she returned after the holiday weekend she was
confronted by Mrs. Jamarsz who was harsh and abusive. The grievor fainted shortly after this en-
counter and had to leave the workplace. She went to see her physician who counselled her to refrain
from attending at her workplace for a period of time. In total the grievor missed 61 days of work.
The Union intends to call medical evidence to show there is a connection between the altercation
and the grievor's subsequent depression. The grievor returned to the workplace but continued to en-
counter problems with Mrs. Jamarsz.
4 It was the Union's position that the Employer has an obligation to provide a safe and healthy
workplace. This obligation arises from statute, the collective agreement and its own policies and
procedures. The grievor asks the Board for a declaration that this obligation has not been met and
that the grievor should be made whole. To do so will include a return of all her sick leave, any
compensation lost due to being paid at a lower rate while on sick leave and aggravated damages.
5 Ms. Gallop, for the Employer, set out a completely disparate view of the matter. Regarding
the facts, Ms. Jamarsz is not the grievor's immediate supervisor. The grievor's supervisor is Ms.
Newman. However, there was a ten day period when the grievor reported directly to Ms. Jamarsz.
Prior to May of 2001 the grievor was assigned in the workroom at the warehouse had little supervi-
sion and, in large measure, could come and go as she pleased. In May of 2001 both Ms. Jamarsz and
Ms. Newman were hired. The grievor resented these appointments and resisted efforts made to en-
sure that she work all of the hours she was scheduled. Ms. Gandzi was scheduled to work on the
Saturday of the Canada Day weekend in 2001. She knew this at the end of Ma y 2001 because she
had a discussion with Ms. Newman. The grievor took advantage of Ms. Newman's inexperience in
the workplace to the extent that at the end of that conversation Ms. Newman was uncertain as to
whether the grievor had to work or not. However, during the week of June 18th Ms. Gandzi asked
Ms. Newman who was now scheduled to work on the Saturday of the long weekend. The grievor
was told that she was scheduled to work. She gave Ms. Newman a number of excuses as to why she
could not work. There were several discussions over the next few days regarding the Employer's
expectation that the grievor must attend at work as scheduled. Ms. Gandzi was told that she was
scheduled to work and that she was required to appear at work on the day in question. The grievor
neither appeared at work that day nor did she report in that she was ill. On July 3, 2001, when Ms.
Jamarsz returned to work she was informed that the grievor had not attended at work as scheduled.
In a conversation with Ms. Jamarsz the grievor said that she had told Ms. Newman that she would
not be in that day. Ms. Jamarsz told the grievor that they would have to have a meeting in her office
to discuss the matter.
6 Shortly thereafter Ms. Jamarsz was told that the grievor had a fainting spell and had left the
workplace.
7 It was the Employer's position that the grievor was clearly insubordinate but, given that the
grievor took extended sick leave after this incident, it decided it would not impose discipline. How-
ever, it strongly opposed the Union's allegation that any supervisor was abusive to the grievor or
Page 4
that the Employer did not have the right to speak to Ms. Gandzi about her failure to report to work
as scheduled. Such a discussion about noncompliance with the rules in the workplace is not harass-
ment.
8 It became apparent during the parties' opening statements that there were a number of pre-
liminary matters that needed to be addressed. Accordingly, a second day of hearing was held to deal
with these issues. This decision addresses only those preliminary matters.
Issue # 1 - Can the Union amend the grievance?
9 The first issue was raised by the Employer. Can the Union be allowed to amend the grievance
to change the reference to article 23.04 to article 30? It was the Union's position that the grievor is
not an expert in labour relations and she simply made an error in her claim. She obviously was re-
ferring to a violation of her health and safety rights. Indeed, those actual words appear on the
grievance form. Unfortunately, the article reference was incorrect. Article 23.04 is the provision re-
garding workplace insurance benefits. It is an integral part of the Union's case that the Employer
failed to provide the grievor with a safe working environment and it would be overly technical and
unfair for this Board to fail to allow the amendment. In this regard, the Union relied upon Re Met-
ropolitan Authority of Halifax, Dartmouth and Halifax County and Correction Officers Association
of Nova Scotia (1983), 10 L.A.C. (3rd) 265 (Outhouse); Mississauga Hydro-Electric Commission
and International Brotherhood of Electrical Workers, Local 636 (1992), 28 L.A.C. (4th) 177
(Springate); and Blouin Drywall Contractors Ltd. And United Brotherhood of Carpenters and Join-
ers of America, Local 2486 (1975), 57 D.L.R. (3d) 199 (Evans, Brooke and MacKinnon, JJ.A.)
10 Ms. Gallop, for the Employer, suggested that the amendment being requested is substantive
in nature and not merely a "typographical error". The grievance clearly addresses an incident that
took place on July 3, 2001. There is no complaint about the Employer's conduct on any other day.
There is no assertion of a pattern of conduct or a continuing course of conduct. The Union now as-
serts that it wants to introduce evidence about the conduct of various Employer representatives be-
fore and after July 3, 2001 and that simply should not be allowed by this Board because those com-
plaints were not properly processed through all of the steps of the grievance procedure. For the Un-
ion to now argue that the Employer knew of "ongoing problems" between the grievor and her su-
pervisor and should have done something about it is a fundamental change in grounds and not a
simple amendment.
11 It was conceded by the Employer that the grievor is not a labour relations practitioner and
should not be held to that standard. However, under this collective agreement the employer is enti-
tled to know the case it is going to face at arbitration. Indeed, under this collective agreement this
Board has no jurisdiction to amend the grievance as the Union is requesting. There can be no doubt
that the Union is now attempting to expand its evidence and allegations beyond that which is set out
on the face of the grievance.
12 The relevant provisions of the collective agreement state:
4.01 The parties hereto agree that the operations of the Employer entail working
methods, hours and processes which are peculiar to it.
Page 5
4.02 The parties further acknowledge that it is the exclusive function of the Em-
ployer, subject to the provisions of this Agreement, to manage and control its op-
erations, and without limiting the generality of the foregoing, to:
(a) maintain order, discipline, and efficiency;
(b) hire, transfer, promote, classify, demote, layoff, assign work, and suspend or
discharge employees for just cause, and introduce new or improved methods or
facilities;
(c) manage, control, continue, discontinue in whole or in part the Employer's opera-
tions, and without restricting the generality of the foregoing, to determine the
number of employees, schedule of activities, kinds and locations of machines and
processes to be used and the scheduling and conducting of clinics and deliveries
and the determination of their locations, in accordance with the function of the
Employer.
4.03 The Union recognizes that all employees who are members of the clinic
teams and all other members of the bargaining unit must work in co-operation
with one another.
4.04 These management rights shall not be exercised in a manner inconsistent
with the provisions of this Agreement.
7.01(a) Grievance forms shall be supplied by the Union. The grievance must
contain reference to the article and specific section of the agreement, which is al-
leged to have been violated, provide a brief explanation of the nature of the
grievance and the redress sought.
8.01(a) Both parties to this Agreement agree that any dispute or grievance con-
cerning the interpretation or alleged violation of this Agreement, which has been
properly carried through all the steps of the grievance procedure outlined in Arti-
cle 7 above, and which has not been settled, will be referred to a Board of Arbi-
tration at the written request of either of the parties hereto.
8.06 The Board of Arbitration shall not have any power to alter or change any of
the provisions of this Agreement or to substitute any new provisions for any ex-
isting provisions, or to give any decision inconsistent with the terms and provi-
sions of this Agreement.
13 The Employer did not quarrel with the general jurisprudential principles as stated by Union
counsel. However, it was suggested that the most helpful decision for this Board to take into ac-
count is a previous award between these parties on this matter. In Re Canadian Blood Services and
OPSEU, [2002] O.L.A.A. No. 18, (January 7, 2002) (Devlin) it was found that the Union could not
expand the scope of a grievance at the arbitration hearing stage.
14 In reply the Union asserted that it is not attempting to expand the scope of the matter at
hand. There was a simple error made in reference to article number and it was expressly provided
that health and safety was an issue. Further, evidence about the employer's conduct before and after
Page 6
July 3, 2001 is relevant and should be admitted. The allegations of harassment and discrimination
imply a pattern of conduct.
15 In my view the first issue put forward by the Employer is actually two separate questions.
First, can the Union amend the article number on the grievance? The second matter is whether the
Union is attempting to expand the scope of the grievance by now asserting that the Employer or its
representatives violated the health and safety provisions of the collective agreement before and after
July 3, 2001.
16 After consideration of the first issue I am of the view that the Union can amend the article
number of the health and safety provisions. This was, no doubt, a simple error made by a non labour
relations practitioner. It is understandable how this error could be made given that both article 23.03
and article 30 deal with aspects of workplace safety. It is difficult to understand how the Employer
could be surprised by the Union's assertion that the grievor's health and safety rights were violated
given that those exact words were expressed on the grievance form itself.
17 The Employer relied heavily upon the recent decision of Arbitrator Devlin between these
parties. In that case the Employer assigned an employee to attend an Instructional Student Training
Program and the grievor took issue with that assignment. She filed a grievance that alleged a viola-
tion of article 16.02(a) which provides for the criteria to be used for promotions. The grievance fur-
ther stated that the reasons she was given for the assignment were "not valid". As in the present
case, the Employer raised a preliminary objection that the Union was attempting to expand the
scope of the grievance when the Union informed the board that it intended to argue, in the alterna-
tive, that the Employer had violated the management's rights provision of the collective agreement.
The Employer also argued that the Union should only be allowed to assert a violation of article
16.02(a) and no other collective agreement provisions because they were not expressly stated on the
face of the grievance. In her decision, Ms. Devlin determined that the Union would not be held to
arguing the narrow issue of whether only article 16.02(a) was violated because the criteria to be uti-
lized for promotions found therein is also referenced in other articles regarding transfers and as-
signments for new positions. In arriving at her decision she stated, at page 12:
In this case, the grievance alleges a violation of article 16.02(a), which specifies
that in cases of promotion, the following factors are to be considered: (i) skill and
ability and (ii) seniority. The article further provides that where the qualifications
referred to in factor (i) are relatively equal, factor (ii) will govern. As noted by
the Union, article 16.01 of the agreement provides that the criteria set out in Ar-
ticle 16.02(a) also govern the selection of employees to fill new positions and ar-
ticle 16.04 provides that those criteria also apply to permanent transfers. In these
circumstances, therefore, and given the requirement to liberally construe the
grievance, I cannot accept the Employer's submission that the grievance is con-
fined to a claim that Ms. Sauve was improperly promoted.
In this regard, although the grievance complains about the Employer's failure to
apply the criteria set out in article 16.02(a) in selecting Ms. Sauve for the ISTP
Trainer position, there is no reference to promotion on the grievance form, the
reply to the grievance or any documentation related to the grievance process.
Moreover, while the grievance admittedly makes no reference to Articles 16.01
or 16.04, given that it clearly alleges a violation of article 16.02(a) and that the
Page 7
criteria set out in that article apply in cases of promotion, permanent transfer and
the selection of employees for new positions, I cannot conclude that the griev-
ance is confined to a claim that Ms. Suave was improperly promoted.
Difference considerations, however, apply to the Union's alternative claim that in
selecting Ms. Sauve to attend the training course and subsequently assigning her
to perform her training duties, the employer violated the management rights
clause. The grievance does not refer to management rights or to Article 4 but in-
stead alleges a breach of article 16.02(a) and complains about the Employer's de-
cision to select an employee with less seniority than the grievor for the ISTP
Trainer position in circumstances where the skill and ability of the two employ-
ees are equal. In my view, it is quite a different matter to suggest that the Em-
ployer has exercised its management rights so as to infringe the rights of em-
ployees under other provisions of the agreement. Moreover, although the griev-
ance claims that the reasons for the Employer's decision to select Ms. Sauve were
invalid, there is nothing to indicate that this claim was intended to involve a sep-
arate and distinct breach of the agreement as is now suggested by the Union. In
the result, while the grievance must be liberally construed, in this case, I find that
claims relating to an alleged violation of the management rights clause are not
encompassed by the grievance filed by Ms. Widdis.
18 I am one of the arbitrators who is convinced that, generally speaking, there is little to be
gained by taking a rigid or overly technical approach to the litigation of legitimate disputes between
the parties. To find that the Union cannot amend what I consider to be a simple error in article
number when its intention was made clear by the reference to "health and safety in the work place"
would be both wrong and a disservice to the arbitration process.
19 However, the second aspect of this issue is another matter. The instant collective agreement
provides certain restrictions and directions. Article 7.01(a) states that a grievance "must contain" a
"brief explanation of the nature of the grievance and the redress sought". Article 8.01(a) states that
any dispute or grievance concerning the interpretation of alleged violation of the collective agree-
ment must be carried through the grievance procedure. On the instant grievance form there is spe-
cific reference to an incident that took place on July 3, 2001 and the articles of the collective
agreement that were breached as a result. The grievance states that "on July 3, 2001 my supervisor
Mrs. J. Jamarsz violated the contract ...". Therefore, I must agree with the Employer that the Union
is attempting to expand the grounds of the grievance by attempting to claim that the Employer vio-
lated the grievor's health and safety before and after July 3, 2001. This might have been a different
matter if the grievance form had not been so specific about the incident of July 3, 2001. If there had
been no reference to a date or if something akin to "and at other times", I might well have given
more weight to the Union's argument that harassment and discrimination allegations imply a pattern
of conduct. There is nothing on the face of this grievance to indicate that this claim was intended to
involve other separate and distinct breaches of the collective agreement.
20 Therefore, given the language of this collective agreement and after taking into account the
earlier decision between these parties by Arbitrator Devlin I find that I cannot allow the evidence
that the Union intended to call regarding other confrontations as set out in its opening statement.
Issue #2 - Order for Production of Documents
Page 8
21 In a pre-hearing request for particulars, Mr. Majewski asked for the production of the fol-
lowing:
1. a copy of the original schedule issued on April 27, 2001 that was generated
for the week of June 25, 2001;
2. documents relating to the Employer's investigation into the altercation be-
tween Ms. Jamarsz and the grievor on July 3, 2001, including Kay Ros-
tant's notes in that respect;
3. documents relating to the relationship between Ms. Jamarsz and the
grievor subsequent to the altercation of July 3, 2001;
4. documents relating to the Employer's investigation of any other allegations
of harassment or abusive conduct made by other employees against Ms.
Jamarsz; and
5. documents in Ms. Jamarsz's personnel file that deal with any discipline or
corrective action arising from the altercation with the grievor on July 3,
2002 (sic), or arising from any other allegations of harassment or abusive
conduct made by other employees against Ms. Jamarsz.
22 At the hearing Ms. Gallop provided the Union with a copy of the only remaining schedule
generated for the period at issue. Further, she indicated that the requests at paragraphs 3 and 5 were
not provided because no such documents exist. Regarding the request found at paragraph 4, there
are no documents on file prior to July 2001. Given my decision above, I therefore find that any post
July 3, 2001 documents that exist need not be produced. Therefore, the only outstanding production
issue is regarding the request for documents relating to the Employer's investigation of the incident
of July 3, 2001 including any notes of Ms. Rostant, Director of Human Resources.
23 It was the Employer's position that the Union bears the onus of proof in this matter and it
will have to prove its allegations by way of viva voce evidence. The Union must have conducted its
own investigation into this matter and it neither needs nor is it entitled to the Employer's notes. Ms.
Gallop suggested that it is hard to imagine what assistance Ms. Rostant's notes would provide to the
Union. In any event, virtually all of the investigation was done after the grievance was filed and
therefore is either protected by solicitor-client privilege or the privilege that arises from documents
generated in anticipation of litigation.
24 Ms. Gallop also submitted that a production order in this regard would damage the Employ-
er's ability to test the Union's case in cross examination. If the Union called a witness whose evi-
dence was different from what that witness had said to the Employer during its investigation the
Employer ought to be able to test that witnesses credibility. Production of notes would preclude that
event. In the alternative, if this Board is persuaded to order production I should also order the Union
to immediately provide the Employer with its investigation notes and postpone the need for the
Employer to provide its notes until after the closure of the Union's case. In this regard the Employer
relied upon Re Ontario Power Generation Inc. and Power Workers' Union (2001), 97 L.A.C. (4th)
90 (M. Picher); Re Central Park Lodges (Versa-Care Windsor Place) and Service Employees Inter-
national Union, Local 210 (2001), 95 L.A.C. (4th) 192 (Etherington).
25 The Union noted that the Employer never suggested that the information at issue was not
arguably relevant and that is the test that this Board should apply. If the Employer conducted an in-
vestigation into this matter and took notes of that investigation the information contained therein is
Page 9
relevant and should be produced to the Union. It was conceded by Mr. Majewski that the Union
might be obliged to reassess its case or abandon certain allegations once those notes are disclosed.
Further, if certain issues were not investigated by the Employer, that fact might shed light on
whether there were health and safety violations in the workplace. The Union relied upon Re West
Park Hospital and Ontario Nurses' Association (1993), 37 L.A.C. (4th) 160 (Knopf); and Re Chil-
dren's Aid Society of City of Belleville, County of Hastings and City of Trenton and Canadian Un-
ion of Public Employees, Local 2197 (1994), 42 L.A.C. (4th) 259 (Briggs).
26 In reply the Employer suggested that the Union is clearly engaging in a fishing expedition
given its admission that it might have to reassess its case once those notes are produced. The Union
is seeking access to the Employer's files for the purposes of establishing whether it has a viable case
with which to proceed. Ms. Gallop suggest that this is an abuse of a request for production of doc-
uments.
27 Generally speaking, pre-hearing disclosure is requested and ordered in an effort to prevent
undue delay during the course of a hearing. Therefore it usually makes procedural sense to make
such orders rather than having to deal with these matters as they arise piecemeal during the course
of the hearing.
28 The outstanding disclosure issue between these parties is regarding the Employer's investi-
gation notes. Ms. Gallop, in her submissions, informed the Board that virtually all of the investiga-
tion undertaken by the Employer was performed after the filing of the grievance and therefore
should not be ordered disclosed because it was prepared in anticipation of litigation. In both Re
Central Park Lodge (supra) and Re Ontario Power Generation Inc. (supra), an order was sought for
pre-hearing disclosure where an employee had filed a grievance alleging that they had been dis-
charged. In Central Park Lodge Arbitrator Etherington was asked to order disclosure of, amongst
other things, the notes from interviews and communications made prior to the grievor's discharge.
In that case, it was the Employer's position that even though the grievance had not yet been filed,
the documents were protected by litigation privilege. Arbitrator Etherington found no basis for a
finding of litigation privilege regarding those documents generated prior to the grievor's discharge.
He stated that is was not possible to "say there were done for the dominant purpose of preparing for
litigation given the fact that there would be no litigation if the result of the interviews was a finding
that there was no just cause for discipline." He considered that the situation after the filing of the
grievance might be different and that the employer could successfully argue that the documents sat-
isfy the requirements for litigation privilege. In this regard Mr. Etherington reviewed an earlier de-
cision, Re British Columbia (Ministry of Transportation & Highways) and B.C.G.E.U., Local 1103,
(1990), 13 L.A.C. (4th) 190, (1990), 19 C.L.A.S. 234. In that decision Arbitrator Larson stated at
page 119:
I would say, however, that I do not consider the timing to be crucial in these
kinds of cases because of supervisor (or a shop steward) could be called upon to
provide advice in anticipation of a grievance. That kind of communication would
be as equally entitled to protection as one that happened to occur after a griev-
ance is initiated. It would be wrong to assume that a communication is entitled to
protection merely because it occurs after a grievance is initiated. It is true that in
the normal course of events a communication that is made in preparation for an
arbitration would invariably meet the "Wigmore conditions" but that is not nec-
essarily so. What is important is the NATURE OF THE COMMUNICATION.
Page 10
(emphasis mine)
29 Arbitrator Larson was dealing with a request for documents that were generated after the
filing of a grievance and Arbitrator Etherington suggested that "his comments about timing not be-
ing a crucial factor appear to be directed to addressing the situation where documents are prepared
after an employer action is taken, i.e. denial of a promotion, which everyone assumes will result in a
grievance."
30 I agree with this line of decisions. I do not accept that the mere timing of those documents
would bring about a finding of litigation privilege. Arbitrator Etherington set out two requirements
for a finding of litigation privilege. At page 198 of his decision he stated:
There are two key requirements for application of the litigation privilege. First,
the documents, whether they be statements, notes or reports, must have been
prepared in contemplation of litigation, that is when litigation was pending or it
was reasonable to expect litigation to ensue. Second, the documents must have
been prepared for the purposes of such litigation, and if they can be said to have
multiple purposes it must be shown that the dominant purpose for their creation
was preparation for litigation (See Liffey Custom Coatings, (1996), 59 L.A.C.
(4th) 7, supra, at 11-12
and cases cited therein).
31 As mentioned above, the Employer stated that virtually all of the investigation documents
were generated after the filing of the grievance. However, Ms. Gallop also said in her opening
statement regarding the merits of this case that the Employer initially considered imposing disci-
pline for the reason that it thought the grievor had been insubordinate. Any investigation notes, if
any, done in that regard are to be disclosed to the Union. To be clear, I order the Employer to dis-
close the investigation notes as requested by the Union in paragraph 3(b) of its April 23, 2002 letter
that are not documents that satisfy the above requirements for litigation privilege.
Is a breach of the Employer's Policies Arbitrable?
32 The Union alleged in the body of the grievance that the Employer had violated its own hu-
man resources policies and procedures. Ms. Gallop asserted that if there was such a breach it is not
arbitrable. Article 7.01 defines a grievance as a violation, or alleged violation, of the collective
agreement and therefore my jurisdiction does not include hearing and determining alleged viola-
tions of policy. In this regard the Employer relied upon Re York Region Catholic Separate School
Board and Ontario English Catholic Teachers' Association (1995), 49 L.A.C. (4th) 123 (Keller).
33 Mr. Majewski took a different view. He stated that it was the Union's intention to put spe-
cific human resource policies before the board because those policies are congruent with and make
references to the collective agreement and are therefore arbitrable. It was contended that Re Weber
v. Ontario Hydro (1995), 125 D.L.R. (4th) 583, [1995] has brought about an extension of this area
of the law. The Union also relied upon Re PetroCanada Lubricants Centre and C.E.P., Local 593
(2000), 89 L.A.C. (4th) 378 and; Re Lakehead District School Board v. Canadian Union of Public
Employees, [2001] O.L.A.A. No. 478, Local 2586 (July 5, 2001), (Murray). In the instant case the
Page 11
grievance alleges a violation of management rights. In article 4.04 it is stated that management
rights will not be exercised in a manner inconsistent with the provisions of the Agreement. It is not
reasonable for any employer to breach its own policies in its treatment of employees. The Employer
cannot promulgate policies and then violate them at will.
34 Although this matter was put before me as a preliminary matter it is not necessary to decide
this issue at this point. I will decide this aspect of my jurisdiction in my final award. The Employer
did not suggest that the Employer's policies were not relevant or inadmissible as evidence. If it in-
tends to make either of those arguments it can do so at the appropriate time in the proceedings.
What Medical Evidence Can Be Admitted?
35 The Union informed the Employer that it intends to lead medical evidence regarding the
state of the grievor's health as a result of the July 3 d incident. The Employer is concerned about the
practicality of this line of evidence and about the amount of time that it would add to the litigation
of this matter. It was suggested by Ms. Gallop that I should bifurcate the issues, that is, I should first
determine whether there was a breach of the collective agreement. If the answer to that question is
no then there would be no need hear any medical evidence. However, if the Board determines there
is a violation of the collective agreement then perhaps the medical evidence would be appropriate
for the purposes of ascertaining what is an appropriate remedy. It was the Employer's position that
there simply is no medical evidence that would assist this Board in making its determination as to
whether there was a breach of the collective agreement in the first instance. If the Union calls med-
ical evidence the Employer would want the physician to attend for the purposes of
cross-examination and the Employer would want the rest of the grievor's medical file released to
ascertain whether she has a predisposition to particular medical problems. The Employer might also
want an independent medical examination performed on the grievor.
36 Mr. Majewski began by reminding the board that the issue of health and safety is at the fore
of this grievance. The Employer failed to provide a safe workplace by allowing the July 3rd 2001
incident to occur and that failure resulted in the grievor's health deteriorating. Her physician could
best proffer that evidence. There is no need to be concerned about a prolongation of the hearing be-
cause this simply would require one additional union witness. The Union stated that it would be
concerned about a bifurcation of the case in this regard because it is entirely possible, indeed likely,
that some of the medical evidence will be of assistance to this Board in its determination as to
whether there was a violation of the grievor's health and safety.
37 In reply the Employer queried what evidence a physician could offer that would assist this
Board in determining whether the collective agreement had been violated. A physician could only
provide evidence about what was reported to him/her via the grievor. There would have to be a link
established for a change in physical health. Further, even if there was some change in her physical
health that does not go to whether the collective agreement has been violated.
38 Dealing with the Employer's reply submission first, there is no indication as to whether the
evidence the Union intends to call from the grievor's physician would be of a subjective or objective
type. I would have to hear the evidence to determine what, if any, assistance it provides. To reject
hearing the evidence because it might be subjective in nature is improper. I am not certain that the
evidence will be useful in my determination as to whether there was a violation of the health and
safety provisions of the collective agreement. Nevertheless, I am compelled to hear it in order to
make that decision.
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39 I accept that the Employer was genuinely concerned that medical evidence might prolong
the hearing. However, concern for the length of time that possibly complex medical evidence might
take is simply insufficient reason to disallow its introduction.
40 The Employer indicated that if I decided to allow this evidence to be called by the Union in
the presentation of its case in chief, it would make certain requests. I will deal with them if and as
they arise.