HomeMy WebLinkAbout2002-2964.McCormick.08-09-26 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB#2002-2964, 2002-2965, 2002-2966, 2004-2332, 2005-0944, 2005-3167
UNION#2003-0634-0001, 2002-0634-0005, 2002-0634-0004, 2004-0634-0003, 2005-0634-0001,
2005-0634-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McCormick)
Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFOREVice-Chair
Barry Stephens
FOR THE UNION
Caroline V. Jones
Paliare Roland Rosenberg Rothstein LLP
Barristers
Counsel
FOR THE EMPLOYERMelissa Nixon
Ministry of Government Services
Counsel
TELECONFERENCESeptember 4, 2008.
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INTERIM AWARD
[1] This is an interim award dealing solely with the union?s motion for non-suit with
respect to the disciplinary issues before me.
[2] The parties have been in mediation and litigation for several years in this matter,
before several different vice-chairs.
[3] The grievances raise issues with respect to discipline imposed on the grievor, as
well as claims by the grievor that she had been subjected to harassment and
discrimination in the workplace, and other matters. At the outset, I ordered that
the employer would first be required to present its evidence with respect to the
disciplinary matters. After 47 days of testimony we have reached the end of the
employer?s case on discipline. The union has brought a motion for non-suit, and
seeks to have the disciplinary issues dismissed.
[4] The discipline relates to three matters. First, the grievor was disciplined for an
incident in which it is alleged she undermined her shift leader, Darlene Jackson.
Second, it is alleged that the grievor behaved inappropriately in a discussion with
a member of the public with respect to Ministry matters. Third, it is alleged that
the grievor demonstrated a discriminatory attitude in the workplace. The
employer confirmed at the hearing that issues of job performance also mentioned
in the letter of discipline do not form part of the case supporting discipline.
[5] The GSB has developed a number of key principles which are outlined in Ontario
Public Service Employees Union (Whan) v. Ontario (Transportation),2007
CanLII 6889 (Dissanayake), and which were subsequently followed and applied
inOntario Public Service Employees Union (O?Connor) v. Ontario (Finance),
2008 CanLII 9600 (Lynk);Ontario Public Service Employees Union
(Hepplestone) v. Ontario (Ontario Science Centre),2007 CanLII 5887 (Herlich);
Ontario Public Service Employees Union (Anthony) v. Ontario (Community
Safety and Correctional Services),2007 CanLII 14608 (Harris):
The key principles to be extracted from the Board?s jurisprudence may be
summarized as follows:
1. The Board will not put the moving party to an election of whether or not to
call its own evidence as a matter of course. The appropriateness of
putting the moving party to such an election will be determined based
upon the considerations of expedition and fairness in the particular
circumstances of each case.
2. In a non-suit motion, the standard of proof expected from a responding
party is that of a prima facie case, which is significantly lower than the
standard of proof on a balance of probabilities.
3. In determining whether a prima facie case has been made out, the test is
whether some evidence exists to support the claim, which requires an
answer or explanation from the other side.
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4. In applying the standard of a prima facie case, any conflicts in or doubts
about the facts must be determined in favour of the party responding to
the motion.
5. In assessing the existence of a prima facie case, viva voce evidence as
well as all documentary evidence before the Board must be considered.
6. In examining the evidence before it, the Board will not assess the quality,
reliability or the credibility of the evidence.
7. Where a non-suit motion is granted a written decision with reasons will
follow. However, where a motion is denied, no reasons, oral or written,
will be issued.
[6] In the case before me, the employer agreed that the union should not be put to
an election.
[7] The union?s submissions with respect to the non-suit relied heavily on arguments
that I would generally categorize as attacks on the credibility, reliability and
consistency of the evidence. However, in accordance with the principles above,
my role at this stage is not to subject the evidence to such a level of scrutiny.
Rather the question is whether there is any evidence to this point that constitutes
a prima facie case requiring some response. In other words, leaving aside
issues of the quality of the evidence, is there evidence that, left unchallenged,
might arguably support some level of discipline against the grievor? Where the
motion is denied, no reasons can be provided.
[8] Having considered the viva voce and documentary evidence tendered during the
employer?s case with respect to each of the three allegations, and the
submissions of counsel in light of the foregoing principles, it is my conclusion that
the union?s non-suit motion is not upheld.
th
Dated at Toronto this 26 day of September, 2008.
Barry Stephens, Vice-Chair