HomeMy WebLinkAbout2017-0127.Miller.18-05-22 Decision
Crown 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# 2017-0127
UNION# 2017-0369-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Miller) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Reva Devins Arbitrator
FOR THE UNION Christopher Bryden
Ryder Wright Blair and Holmes, LLP
Counsel
FOR THE EMPLOYER Stewart McMahon
Treasury Board Secretariat
Legal Services Branch
Senior Counsel
HEARING May 18, 2018
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Decision
[1] This preliminary motion arises from the Grievor’s discharge from employment as a
correctional officer for failing to do a visual scan and identifying a fight on July 25,
2016; failing to conduct a proper watch tour and failing to notice an injured inmate
that same day; and failing to remove a weight bag from the dayroom area, also on
July 25, 2016.
[2] The Employer previously fulfilled the Union’s production requests and made an
Opening Statement. The Arbitrator and Counsel then attended at the correctional
facility to view the facilities where the Grievor’s alleged failures to carry out his
duties occurred. Several continuation dates have been set, with the next days of
hearing scheduled for June 4 and 18, 2018, at which time the Union will give its’
Opening Statement.
[3] The Union has very recently asked for additional production regarding three
occasions where inmate fights and resulting injuries were allegedly missed by staff
and for which no discipline was imposed. The Union has provided the date and
Unit of the alleged occurrences and stated that management was aware that the
incidents were missed by staff, but took no disciplinary action. The Union seeks
production surrounding these incidents, maintaining that these documents are
arguably relevant to whether the discharge of the Grievor constitutes discriminatory
or differential discipline.
[4] Counsel for the Employer submitted that the Union has not satisfied the degree of
specificity required in detailing the incidents for which production is sought and has
therefore not established a sufficient nexus between these events and the issues
before me at arbitration. In the Employer’s submission, the Union’s request
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amounts to an impermissible “fishing expedition”. The Employer further argued that
the granting of an order for production would unduly delay the proceedings and it
would be prejudiced as a consequence.
[5] In light of the timing of the upcoming dates, and the desire to ensure that this
matter can proceed as expeditiously as possible, the parties indicated that they
were content to receive abbreviated reasons, reserving their right to request further
elaboration in my final decision. Therefore, having considered the submissions of
the parties and the authorities cited to me, I have determined that production of the
documents requested in Union counsel’s letter of May 16, 2018, should be ordered
for the following reasons:
1. The requests relate to matters that are arguably relevant to the matter
before me;
2. The Union has provided sufficient detail so that the Employer knows
what is being sought;
3. Although the evidence may not ultimately be sufficient to establish a
case of differential treatment in the disciplinary response to the
Grievor’s conduct, there is a sufficient nexus between the events
described by the Union and the facts at issue before me. The Union
has set out specific dates, locations and lack of management response
on three occasions where inmate fighting and/or injury were missed by
staff during the course of their duties. I regard that as sufficient in this
case to demonstrate that this is not a mere fishing expedition;
4. I am also satisfied that production can be achieved without undue
delay and that any prejudice to the Employer can be mitigated through
management of the process and the opportunity to address the issue of
the appropriate remedy, if required;
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5. Finally, I am mindful that this is a discharge case and that care must be
taken to ensure that the Union has a full opportunity to challenge the
Grievor’s termination.
[6] I would therefore order as follows:
i. The Employer will produce the documents requested by the Union
by 5:00 p.m. on May 30, 2018;
ii. The next hearing day will commence at 1:00 p.m. on June 4, 2018,
at which time the Union will provide its’ Opening Statement;
iii. The Union will include particulars of any assertions of discrimination
or differential treatment it intends to rely upon in its’ Opening
Statement;
iv. At the conclusion of the Union’s Opening Statement I will entertain
requests from Employer Counsel for written particulars from the
Union, the opportunity to provide a supplemental Opening
Statement or any other procedural issues arising from this Order.
Dated at Toronto, Ontario this 22nd day of May 2018.
“Reva Devins”
Reva Devins, Arbitrator