HomeMy WebLinkAbout2006-2863.Morsi.08-08-27 Decision
Commission de
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règlement des griefs
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Morsi)
Union
- and -
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFOREReva Devins Vice-Chair
FOR THE UNIONEd Holmes
Ryder Wright Blair & Holmes LLP
Barristers & Solicitors
FOR THE EMPLOYERJennifer Richards
Counsel
Ministry of Government Services
HEARING
August 19, 2008.
2
Decision
A motion was brought by the Employer for an Order dismissing these grievances for failure to
provide sufficient particulars or, in the alternative, an Order for further particulars. The Union
brought motions for an Order for disclosure and for consolidation of five additional grievances.
Prior to completion of the argument on the preliminary matters, counsel advised that they had
reached an agreement with respect to the Union?s motion and would therefore only require a
decision on the Employer?s requests. The parties agreed that the Union?s disclosure motion
would be held in abeyance pending the Board?s decision on particulars and implementation of
that decision if necessary. It was further agreed that five additional grievances, filed between
May 20, 2008 and August 19, 2008, would be consolidated for hearing with the current list of
grievances. Any grievances filed after August 19, 2008 would not be consolidated.
Background
The grievor has filed a number of grievances dating from November 28, 2006; a total of 20
grievances are scheduled for arbitration commencing October 21, 2008. The grievances raise
several issues, however, they can generally be described as allegations of differential treatment,
discrimination and harassment. The Union provided written particulars by letter dated May 6,
2008 in which it asserted that there were several specific instances where the grievor was treated
differently than other employees. No further details were provided, in particular, the names, time
frame and other details were omitted. Counsel for the Employer sought further particulars,
providing a detailed set of questions regarding the ?who, what, when and how? of the grievor?s
allegations. The grievor has refused to provide these details.
Submissions
The Employer submits that the grievor has failed to sufficiently particularize her grievances and
that the Employer cannot investigate, respond or assess the strength of its case. It was the
Employer?s view that the grievor was aware of the obligation to provide particulars and has
simply refused to supply the required information. It was submitted that in these circumstances,
the grievances should be dismissed. The Employer referred to the following cases in support of
its submission: Chyczij and Ministry of Labour (2001), PGSB # 0017/00 (Maeots), p. 2 and 3;
3
OPSEU (Klonowski) and Minister of Finance, (2002), GSB # 1799/99 (Fisher); OPSEU
(Giannou) and Management Board Secretariat (1997), GSB # 570/96 (Leighton).
In the alternative, if the grievances are not dismissed, the Employer seeks an order for full and
sufficient particulars to be delivered in sufficient time to permit it to adequately prepare its case
before the next scheduled day of hearing.
The Union objects to the issuance of either order. Counsel advised that it was the grievor?s
genuinely held belief that her co-workers will be exposed to possible retaliation by the employer
if she discloses their names in advance of the arbitration of her grievances. She intends to
provide all of the necessary details during the course of her evidence, but is reluctant to do so
any earlier. The grievor has also filed a human rights complaint; the investigation of her human
rights complaint does not require her to disclose the names of those she believes received
differential treatment. Counsel suggested that the procedure in this parallel proceeding should be
respected.
In any event, the Union disputes the insufficiency of the particulars, arguing that the names of
individuals it believes were treated differently than the grievor are set out in its disclosure
request. The Union acknowledged that it did not provide any individual names or details in its
direct response to the request for particulars. Nonetheless, counsel suggested that the names of
the relevant individuals can be inferred from the list of co-workers for whom employment
records have been sought. It was the Union?s submission that the particulars that have been
provided, coupled with the names set out in its disclosure request, are sufficiently detailed and
that no further particulars should be required.
If the Board does determine that the particulars are insufficient, the Union maintains that the
grievor should be permitted to forward the necessary information before her grievances are
dismissed. The Union argued that the cases cited by the employer are all distinguishable: they
were all cases in which an Order for particulars was issued and ignored, or where there was
lengthy notice that the Employer would seek dismissal of the grievances. In this case, there has
not been an Order for particulars and the Union only recently received notice of the Employer?s
intention to move for dismissal.
4
Decision
The collective agreement, in Article 22.14.4 confirms the need for ?disclosure of the issues in
dispute as alleged by a grievance advanced by the Union ?? This Board has consistently found
that the employer is ?entitled to know the case that it is required to meet? and that the obligation
to provide particulars includes receiving ?an answer to the questions ?when?, ?where?, ?how?
and ?who? from the party making the initial allegations?.
In the instant case, the grievor has declined to particularise significant elements of her
allegations. She has asserted that the Employer has treated her differently than her co-workers
but she has not provided the specifics of the differential treatment. She has not provided names,
dates or the precise manner in which her colleagues received preferential treatment. These
deficiencies are not rectified by the list of names set out in the Union?s disclosure request. The
Employer is entitled to receive a clear statement of the allegations against it, including all
relevant particulars. It is not appropriate that it be required to guess or infer from other materials
what case it must meet. There are numerous allegations and I fail to appreciate how the
employer could determine, based on the material that has been provided, which individual relates
to which allegation or the dates for the alleged occurrences.
Nor do I accept the Union?s argument that the omissions in its particulars are justified by the
grievor?s sincere beliefs. There are other safeguards to ensure the integrity of the process. I
appreciate that the grievor?s genuinely believes that she is protecting her colleagues, however,
her refusal to identify them is at odds with her obligation to provide a detailed description of her
allegations. Finally, whatever the process might be in a parallel proceeding such as the Human
Rights Commission, it does not alter the parties? obligations in these proceedings.
These grievances are to be determined at arbitration before this Board where full and sufficient
particulars are required to ensure a fair and expeditious hearing.
Having considered the submissions of the parties, I am satisfied that the particulars provided to
date are insufficient. I am not prepared, however, to dismiss the grievances. In my view, the
appropriate remedy is an order for further particulars. I therefore allow the Employer?s motion in
part and order the Union to provide sufficient particulars by September 15, 2008 of the
discriminatory and differential treatment alleged, as requested in Ms. Richardson?s letters of May
12 and 22, 2008. The particulars will generally include the names of all individuals that are
5
alleged to have been treated in a manner different than the grievor, with dates of these
occurrences. Specifically, the further particulars will include, but are not limited to:
1.The names of all individuals the Union alleges were treated in a manner
different than the grievor regarding mileage and expense claims and the dates
of each occurrence;
2.The names of all individuals the Union alleges were treated differently than
the grievor in meetings with management and the dates of each occurrence;
3.The names of all individuals who where treated differently than the grievor
with respect to accommodation requests and the dates of each occurrence;
4.The name of the individual who was permitted to take a Ministry car home
and the dates of each occurrence;
5.The names of co-workers who were told about her grievances, and the dates of
each occurrence;
6.The names of other individuals who were provided with light audit bags and
the date of each occurrence;
7.How and when Mr. Lucas continued his reprisals against the grievor;
8.Full particulars of the allegations of poisoned work environment, including
who made the alleged comments, the time and place that the comments were
made, and the manner in which the comments were made.
For clarity, the Union is also ordered to provide full and sufficient particulars of the ?who, what,
when, where and how? of the five additional grievances that were consolidated on consent on
August 19, 2008.
th
Dated at Toronto, this 27 day of August.
Reva Devins, Vice-Chair