HomeMy WebLinkAbout2017-0123.Beharrell.18-04-20 DecisionCrown Employees Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2017-0123; 2017-0179; 2017-0486; 2017-0487
UNION# 2017-0248-0013; 2017-0248-0014; 2017-0248-0019; 2017-0248-0020
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Beharrell) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
Diane Gee
Arbitrator
FOR THE UNION
Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Debra Kyle
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING April 17, 2018
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DECISION
[1] The parties are agreed that I have jurisdiction to deal with grievance numbers
2017-0248-0013; 2017-0248-0014; 2017-0248-0019; and 2017-0248-0020 (GSB
numbers 2017-0123; 2017-0179; 2017-0486 and 2017-0487) and that these
matters will be heard together.
[2] Grievance 2017-0248-0013 alleges violations of the collective agreement in
connection with an investigation conducted by the Employer into an incident that
occurred on November 3, 2016. This grievance is referred to herein as the
“Investigation Grievance.” The incident that occurred on November 3, 2016 is
referred to herein as the “November 3, 2016 Incident.”
[3] Grievance 2017-0248-0014 alleges: “HWDC continues to harass and investigate
the Grievor with a new allegation which is obviously a reprisal for the Grievor’s
submission of a grievance dated March 15, 2017.” This grievance is referred to
herein as the “Reprisal Grievance.”
[4] Grievance 2017-0248-0019 relates to a 15 day and 2 day suspension given to the
Grievor and alleges the Employer mishandled and made malicious decisions in
regard to the November 3, 2016 incident. The grievance states in part: “The
Administration’s subsequent inconsistent, disproportionate, idiosyncratically
harassing discipline is viewed by the Grievor as retribution for past Union activities
and the occurrence itself and a personal attack by the Administration of HWDC
without just cause or provocation.” This grievance is referred to herein as the
“Suspension Grievance.”
[5] Grievance 2017-0248-0020 relates to the manner in which the Employer managed
the non-payment of wages to the Grievor in connection with a suspension. The
grievance alleges the Employer failed to follow: “well known and set precedence
pertaining to the payment of monies for a suspension. They/He have taken a
personal vested interest in the unjust punishing of this grievor.” This grievance is
referred to herein as the “Payment of Monies Grievance.”
[6] The parties referred these grievances to mediation/arbitration in accordance with
Article 22.16 of the collective agreement. Article 22.16 provides, in part, as follows:
22.16 MEDIATION/ARBITRATION PROCEDURE
22.16.1 Except for grievances concerning dismissal, sexual harassment,
and/or human rights, and Union grievances with corporate policy
implications, all grievances shall proceed through the GSB to a single
mediator/ arbitrator for the purpose of resolving the grievance in an
expeditious and informal manner.
22.16.2 The mediator/arbitrator shall endeavour to assist the parties to
settle the grievance by mediation. If the parties are unable to settle the
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grievance by mediation, the mediator/arbitrator shall determine the
grievance by arbitration. When determining the grievance by arbitration, the
mediator/arbitrator may limit the nature and extent of the evidence and may
impose such conditions as he or she considers appropriate. The
mediator/arbitrator shall give a succinct decision within five (5) days after
completing proceedings, unless the parties agree otherwise.
[7] The parties were unable to resolve the grievances by mediation and accordingly
discussions were held concerning the management of the hearing. The Employer
agreed to forthwith provide Union counsel with a copy of the grievor’s personnel
file.
[8] The Union requested an order that the Employer produce the videos relating to the
November 3, 2016 Incident and copies of the discipline letters given to any other
individuals in relation to the November 3, 2016 Incident. Having regard to the
highly confidential nature of the videos and the discipline letters the Employer
vigorously contested the order. Ultimately, an agreement, without prejudice or
precedent to any other matter, was reached that the videos and discipline letters
would be produced with strict restrictions concerning who may view them, their
distribution, use and confidentiality.
[9] Having regard to parties’ agreement the Employer is hereby ordered to forthwith
provide to counsel for the Union a copy of the videos and the disciplinary letters.
The contents of the videos and the disciplinary letters are to be kept confidential
as among the parties and are to be used for the purposes of this hearing only and
for no other or improper purpose. Union Counsel will retain in his possession at
all times the copy of the videos and disciplinary letters provided to him by the
Employer and will not make copies thereof except for the purpose of the hearing
of these grievances. Union Counsel can show the videos and disciplinary letters
to, and discuss them with, the grievor and a single advisor from the Union selected
by her. Once the litigation of these grievances is completed, the videos and the
disciplinary letters are to be destroyed except such copies as a professional person
is required by law or a professional body to keep as part of his or her file. For the
sake of clarity, the contents of the videos and the disciplinary letters can be seen
by the grievor, and the one union advisor she has selected, in the presence of
Union counsel. The grievor and her advisor are prohibited from discussing the
contents of the videos or the disciplinary letters with anyone other than Union
counsel.
[10] Pursuant to article 22.16 I can impose conditions on the conduct of the hearing as
I consider appropriate. Having regard to the language of article 22.16, the parties
have agreed that the arbitrator can take steps to ensure that hearings proceed in
a timely manner and do not consume time and resources out of proportion to the
issues in dispute. With this goal in mind, I direct as follows:
(i) No later than May 11, 2018, each party will provide to the GSB and
the party opposite a written statement of the facts they rely upon in
connection with all four grievances (“Statement of Facts”.) For ease
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of reference, the paragraphs of the Statement of Facts are to be
numbered and reference to documents contained within the
Employer’s Book of Documents can be referred to by Tab Number.
Any documents not yet provided to the opposite party that a party
intends to rely upon are to be provided at the same time as the
Statement of Facts. Paragraphs should be kept short and succinct
in order to facilitate the opposite party’s ability to agree to a stated
fact. Time is not to be spent on formatting, spelling, grammar etc.
The exercise is simply to get the facts down.
(ii) No later than May 25, 2018 each party will advise the GSB and the
other party, by reference to paragraph numbers set out in the
opposite party’s Statement of Facts, of the facts that are not in
dispute.
(iii) No later than June 1, 2018 each party shall advise the GSB and the
other party if there is need to call any witnesses other than Tom
Bradley and the grievor. If a party asserts there is a need for an
additional witness to be called, reasons will be given. The Employer’s
Book of Documents, the videos and the disciplinary letters will be
entered as exhibits without need for them to be identified or the
authors to be called. They will be assumed to be what they appear,
on their face, to be. For example, the document at Tab 4 will be
assumed to be a Use of Force Occurrence Report completed by B.
Dixon on November 3, 2016 and it will be assumed that she wrote
the contents of the report on that date. By way of further example,
the letter at Tab 2 will be assumed to be the Employer’s reasons for
imposing the 15-day suspension.
(iv) At the commencement of the hearing on June 8, 2018 brief opening
statements will be made following which the Employer will call Mr.
Bradley. He is to be asked to attest as to the accuracy of the
Employer’s Statement of Facts and can give evidence about matters
that have been identified as in dispute. He will then be subject to
cross-examination. If either party has indicated that a witness other
than Mr. Bradley and the grievor need to be called, I will deal with the
issue at the conclusion of Mr. Bradley’s evidence. If no other witness
is to be called, following Mr. Bradley’s evidence, the Union will call
the grievor. As with Mr. Bradley, the grievor will attest to the accuracy
of the Statement of Facts filed on her behalf and give evidence about
matters that have been identified as in dispute.
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[11] These matters are scheduled to be heard on June 8, 11, 15 and 22 as well as
October 1, 2018. The previously set dates of September 25 and 26, 2018 are
cancelled.
Dated at Toronto, Ontario this 20th day of April, 2018.
“Diane Gee”
________________________
Diane Gee, Arbitrator