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HomeMy WebLinkAbout2019-3018.Dartch.21-03-11 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# 2019-3018 UNION# 2020-0108-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Dartch) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION David Ragni Koskie Minsky LLP Counsel FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel HEARING March 4, 2021 (by teleconference call) -2- DECISION [1] This is a discharge case. The Grievor had been employed at the Elgin Middlesex Detention Centre (“EMDC”). The Union alleges much if not all of the conduct for which the Grievor was terminated was condoned by the Employer. The parties exchanged particulars. The Employer seeks an order for pre-hearing production of certain documents and further and better particulars. Production [2] Paragraph 6 of the Union’s particulars reads: The Grievor planned to commence her pregnancy leave on March 5, 2020, the date of her termination. She had advised the Scheduling department of her plans a week prior. She had a midwife appointment scheduled for March 5 and therefore decided that would be an appropriate day to commence her leave. Her pregnancy was also considered high-risk, especially given the amount of stress she was under at work. The Grievor had therefore planned to exhaust her vacation and sick time to ensure that she could commence her leave on March 5. The Grievor planned to return to work in May 2021 following her pregnancy and parental leaves. [3] The Employer seeks production of medical and other records related to the Grievor’s medical leave so that it may cross examine the Grievor with respect to these statements for the purposes of challenging her credibility. The Union states paragraph 6 is simply inserted as part of the timeline of events. It does not seek any relief in relation to paragraph 6. [4] The Employer’s production request is denied. I am not prepared to order production of documents with respect to what appears to be a collateral fact. [5] Paragraph 70 of the Employer’s particulars reads: 70. The Grievor admitted she had her phone in the secure area of the institution. The Grievor claimed that she was in a custody battle and was making sure her kids were OK. She stated she was also watching music videos. She claimed she was concerned about the location of her son as he didn’t get off the bus; but she admitted she was listening to music on her phone. 71. To date, the Grievor has provided no information or documentation to substantiate her claims; nor did she make any such request of the Superintendent or his delegate. [6] 29(d) of the Union’s particulars reads: -3- (d) The Grievor agrees that she made the admissions and gave the explanations expressed in paragraph 70 of the Employer's particulars regarding having her cellphone on December 2 and 3, 2019. The Grievor did not provide any information or documentation to substantiate her claims per paragraph 71 because she was not asked to do so. [7] The Employer seeks production of any and all arguably relevant documents with respect to: 1. the custody battle [the Grievor] was in with her former spouse; and 2. her concern about the location of her son because he didn’t get off the bus. [8] The Employer confirmed in argument that in its view the Grievor’s unauthorized use of her phone in the secure area constituted misconduct, irrespective of the reason for the use. The Union confirmed that it was not asserting the Grievor’s asserted reasons for using her phone were protected by the Ontario Human Rights Code or were a mitigating factor to be considered. On this basis the Employer withdrew its production request. [9] The Employer has a standing request for production of all arguably relevant documents. The Union states other than certain additional documents related to mitigation which it has agreed to produce, it has produced to the Employer all relevant documents of which the Union is aware which were not already in the Employer’s possession. The Union also undertook to produce promptly any additional documents it can locate which are arguably relevant if and when such arguable relevance becomes apparent. The Employer was content to proceed on the basis of that undertaking. Particulars [10] The Employer seeks further and better particulars with respect to various paragraphs of the Union’s pleadings. The Employer relies upon OPSEU (Gates) v MOHLTC, GSB # 2005-3003 et al, January 22, 2007 (Dissanayake) and OPSEU (Singh) v MCSCS, GSB # 2001-1070, July 7, 2005 (Abramsky) for the proposition that it is entitled to know who, what, where and when with respect to the facts relied upon by the Union. [11] The Union responds there was daily or regular condonation of the misconduct alleged by the Employer. It has indicated that in its particulars. To refuse to permit it to lead evidence of daily or regular condonation would be a denial of natural justice. To require it to do more would mean it would have to provided particulars with respect to each and every day. It has particularized specific -4- instances when it could. The Grievor does not have records which permit to provide greater specificity. The Union also asserts that if during the course of the hearing the Grievor’s memory is jogged and she is able to recall other specific instances, then it should be permitted to rely on those instances as well. [12] I start with the following observations. [13] Article 22.1.4 of the collective agreement provides: 22.1.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution process. 22.1.5 The parties agree that at the earliest stage of the grievance procedure either party upon request is entitled to receive from the other, full disclosure. These provisions are somewhat unique. While there was no argument before me on this issue, there is no suggestion the Union was not required to provide full particulars with respect to its condonation argument at this stage of the proceedings. [14] The obligation to provide particulars means the obligation set out all material facts on which a party intends to rely: see Gates at p. 10. This obligation is not met by providing statements which amount only to argument or conclusions. Having said that, it is not uncommon for statements of particulars to contain not only allegations of facts but also conclusions based on the facts alleged and some argument. This appears to me to be true of some of the Union’s particulars in this case. Conclusions are permissible, but they may not be used as a basis for subsequently leading evidence with respect to non particularized facts. [15] The purpose of particulars is to inform the opposing party of the case which it has to meet. The specificity of the facts required depends on what is alleged. Where the allegation is of improper conduct, it is appropriate to require a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly. Failure to do so may result in dismissal of the allegation for want of a prima facie case. Both of the decisions relied upon by the Employer are cases in which the conduct of the employer was challenged as improper. -5- [16] In this case, the Union does not allege impropriety on the part of the Employer. Rather, in response to the Employer’s allegations of improper conduct, the Union alleges condonation as a defence. The challenge posed by the Union’s particulars is that they allege normal or general condonation of conduct by the Employer. [17] The Employer states it is entitled to know who, what, when and where. The Union’s particulars generally answer the what question: they identify specific conduct which was allegedly condoned. The Employer argues it is entitled to know who, when and where. Simply stated, the answers are everyone, always and everywhere. To the extent the Union’s particulars assert the Grievor or the Employer has always or generally acted in a certain way or that a practice is widespread and known to the Employer, they are disproved by the Employer adducing evidence to demonstrate that is not the case. An assertion that something “always” happens is disproved by one instance in which it did not. An assertion that something generally happens can be disproved by sufficient instances in which it did not. The sufficiency of the evidence will depend on the nature of the allegation. [18] On the other hand, allegations by the Union that the conduct was condoned by some members of management, on some occasions or in some locations, requires specific particularization of which members of management, which occasions or which locations. In the absence of such particulars, the Employer cannot know the case it must meet. Specific allegations must be specifically rebutted, assuming the allegation is material and relevant to the issues in dispute. [19] What the Union is not entitled to do is to allege in its particulars normal or general condonation and then later adduce evidence with respect to specific incidents of condonation which it has not particularized. The time for the Union to jog the Grievor’s memory is now. [20] With these propositions in mind, I turn to the paragraphs of the Union’s particulars at issue. The Employer seeks further and better particulars with respect to the underlined portions of the Union’s particulars. [21] The Union alleges: Overview -6- 9. The Grievor was issued 2 non-disciplinary letters in August and October 2019. The former was a letter regarding leaving the observation cage open. The latter contained a direction to keep institutional keys inside the pant pocket of the uniform instead of wearing them on the belt. The latter letter was issued to most, if not all COs in the institution and not just the Grievor. [22] To the extent this is an assertion of a general practice, it is sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [23] The Union alleges: Overview 11. The day-to-day operations of the Institution and the conduct of all of the personnel within it, including Management (Sergeants, Deputies etc.) bear no resemblance to the contents of Employer's written policies. [24] To the extent this is an assertion of a general practice or is a conclusion, it is sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [25] The Union alleges: Training 19. The alleged misconduct that the Employer relies upon to justify the Grievor's termination is common practice at the institution. Management (Sargent's, Deputies, etc.) are well-aware that the COs engage in this conduct. The Grievor learned this behaviour during her training and by observing other COs. She acted openly and consistently during her entire tenure working for the Employer. At no time did the Employer ever take steps to correct the Grievor's behaviour prior to her termination. [26] The paragraphs which follow reference two months of training at the Ontario Police College, with the remainder of her training appearing to have been on the job at EMDC. To the extent paragraph 19 is an assertion of a general practice or is a conclusion with respect to the Grievor’s training at EMDC, it is sufficiently particularized. To the extent it refers to her training at EMDC or the Union intends to rely on specific instances, they must be particularized. [27] The Union alleges: Allegations -7- 28. With respect to Allegation #4 (failing to observe proper key control practices), the Grievor states the following: (a) She admitted to placing institutional keys in an unlocked drawer on December 2 and 3, 2019 during the Allegation Meeting. The Grievor also explained that this was common practice in the institution. (b) In fact, notwithstanding the policy referred to in paragraph 16 of the Employer's particulars, institutional keys are commonly kept in an unlocked drawer by both COs and management personnel. Sergeants Flynn and Reeves regularly place institutional keys in an unlocked drawer. Unit 4 keys are typically placed in an unlocked drawer during break periods. Institutional keys are not typically transferred "palm to palm" as required by the policy. (c) The Grievor learned the practice of placing institutional keys in unlocked desk drawers during her training and by observing other COs, Sergeants and Deputies. The Grievor conducted herself consistent with this practice openly for her entire tenure working for the Employer. … (e) Contrary to paragraph 81 of the Employer's particulars, the Grievor did not deny receiving letters about proper key control during the Allegation Meeting. The Grievor acknowledged having received a letter dated October 10, 2019 directing her to place institutional keys in her pocket instead of wearing them on her belt (see para 26 of the Employer's particulars). This letter was provided to many, if not all COs working in the institution as part of a "blitz", presumably in response to the widespread practice that was common in the Institution. [28] Paragraph 28(a) appears to simply be an assertion that the Grievor made a statement, not an assertion that the statement was true. If, however, the statement is offered for its truth, to the extent it is an assertion of a general practice it is sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [29] The first sentence of paragraph 28(b) is a conclusion or argument. The second sentence is an assertion of a regular practice by Sergeants Flynn and Reeves. It is sufficiently particularized. To the extent the third and fourth sentences are assertions of general practice, they are sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [30] To the extent paragraph 28(c) is an assertion of a general practice at EMDC, it is sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [31] The last sentence of paragraph 28(e) is an assertion of a specific action by the Employer. It is within the Employer’s ability to refute the assertion. It is sufficiently particularized. [32] The Union alleges: -8- 29. In regards to Allegations #1 and #3 (cellphone usage and showing an inmate her cellphone), the Grievor states the following: (a) Contrary to the policy referred to at paragraph 17 of the Employer's particulars, it is common practice for institutional staff, including management personnel (Sergeants, Deputies, etc.) to have their personal electronic devices (i.e. cellphones) on their person while they are at work, including while they are in secure areas in the institution (see, for example the "selfie" attached hereto at TAB 1 taken by a Sergeant in the shift IC office). [33] To the extent this is an assertion of a general practice, it is sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [34] The Union alleges: 31. With respect to Allegation 5A regarding the introduction of "contraband" on December 2, 2019 (waffles), the Grievor states as follows: (c) It is a common practice in the institution for COs to reward inmates who perform chores with snacks and treats. (d) The Grievor openly engaged in this common practice throughout her tenure working for the Employer. …. (p) The Grievor maintains that she verbally asked Sergeant Dakhlallah and Sergeant Van Herten whether she could provide the waffles to the inmates and both of them responded in the affirmative (see paragraph 66(b) of the Employer's particulars and the Grievor's OR dated January 14, 2020). [35] To the extent paragraphs 31(c) and (d) are assertions of a general practice, they are sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [36] Paragraph 31(p) relates to a series of occurrence reports (“ORs”) written by the Grievor in response to requests by the Employer and is responsive to the following particulars provided by the Employer: 63. On January 9, 2020, Sergeant Reeves requested an addendum to the OR submitted by Grievor Ouellette, asking her to detail the following information: a. The names and OTIS numbers of the inmates you provided with contraband on the dates mentioned in your original report. b. The names of any and all staff members present during any and all interactions detailed in your original report. 64. In response to this request, Grievor Ouellette submitted an addendum OR dated January 9, 2020 at approximately 1253, in which she stated inter alia: -9- a. I cannot recall the name of the inmate on Unit 5 who cleaned and was given coffee. CO Cowan was present when the coffee was given. b. The name of the inmate who received the waffle on Unit 4R was Inmate TL. I am unsure who witnessed it, but my partners that day were CO Rodgero and CO Cowan. 65. Sergeant Reeves gave Grievor Ouellette a third opportunity to be forthcoming and honest with respect to the waffle incident. 66. On January 14, 2020, Grievor Ouellette submitted another OR stating inter alia: a. I had written in my report that unit staff were okay with the waffle going into the unit. This includes the Sergeants that were both working on the level that day. b. I verbally asked Sergeant Dakhlallah and Sergeant Van Herten who gave permission for me to hand the waffle to the inmates. c. Sergeant Van Herten witnessed me delivering the waffle to the unit. d. The waffle was provided to three (3) inmates as a reward for cleaning the video suite area. 67. Information gathered by Sergeant Reeves in his investigation belies the information provided by Grievor Ouellette in her ORs. [37] Paragraph 31(p) is simply a reiteration of what the Grievor stated in her occurrence report as summarized at paragraph 66(b) of the Employer’s particulars. At paragraph 67, the Employer pleads that the information it gathered in its investigation belies the information provided by the Grievor. There is no suggestion the Employer was unable to investigate the Grievor’s statement at paragraph 66(b). If in the course of its investigation the Employer asked Sergeants Dakhlallah and Van Herten about this issue, then it does not require further particulars from the Grievor. If the Employer decided not to pursue this statement by the Grievor during the course of its investigation, then it cannot now rely upon any inconsistency between the Grievor’s statement and what Sergeants Dakhlallah and Van Herten might have said as a basis for the discipline imposed. I am, therefore, not satisfied the Employer is entitled to further particulars with respect to when the Grievor allegedly made the requests of Sergeant Dakhlallah and Sergeant Van Herten referenced in paragraph 31(p). [38] The Union alleges: 32. With respect to Allegation 5B regarding the introduction of "contraband" on December 16, 2019 (the apple-crisp), the Grievor states as follows: …. (c) It is not uncommon for apple-crisps to be prepared for inmates on Unit 7 (female). …. -10- (g) The Grievor's open and consistent practice was to provide treats such as an apple-crisp to inmates as an incentive and reward for performing chores such as cleaning. …. (j) The Grievor's accommodation is unclear. Paragraph 92 of the Employer's particulars indicates that the Grievor violated her accommodation by entering the inmate cell. However, Deputy Flynn has directed the Grievor to enter the inmate bathroom and apply handcuffs to in an inmate while she was pregnant and during the period her accommodation was supposedly in effect. Deputy Flynn's direction is inconsistent with the accommodation described at paragraph 27 of the Employer's particulars, particularly subparagraph 27(a): "to avoid physical altercation/supervision of inmates". [39] To the extent paragraphs 32(c) and (g) are assertions of a general practice, it is sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [40] Paragraph 32(j) responds to paragraph 92 of the Employer’s particulars. Paragraph 92 of the Employer’s particulars reads: Allegation #5: The Grievor was directly involved in introducing contraband into the institution on the following dates: …. b. On December 16, 2019, the Grievor entered an inmate’s cell and delivered non-sanctioned items contained in a cup. …. With respect to Allegation 5B …. 92. It is considered contraband when food provided by the institution is changed to another form. Further, it is in violation of Grievor Ouellette’s accommodation to be inside a cell in a unit outside the view of the camera and the outside officer. [41] Violation by the Grievor of her “accommodation” is not an allegation relied upon by Employer in its decision to discharge the Grievor. Accordingly, the second sentence of paragraph 92 of the Employer’s particulars is struck as is paragraph 32(j) of the Union’s particulars. [42] The Union alleges: 36. Allegation #11 (failing to submit an occurrence report and/or log the incidents laid out in allegations 5, 6 and 10) is manifestly unfair as it fails to take into account: (a) the Employer's condonation of the alleged misconduct; (b) the fact that the Employer had never made the Grievor aware that the alleged misconduct was inappropriate; -11- (c) the fact that the Grievor could not recall abandoning her post and that the Employer refused to show her video footage purportedly capturing that event; and (d) the fact that, as a consequence of (a), (b) and (c) immediately above, the Grievor was not aware that there was anything worthy of being reported in regards to allegations 5, 6 and 10. [43] Paragraphs 36(b), to which the Employer has not objected, alleges a general practice. To the extent that paragraph 36(a) is a conclusion based on paragraph 36(b), it is sufficiently particularized. To the extent the Union intends to rely on specific instances, they must be particularized. [44] The Union alleges: 37. Allegation #12 (see para 110 of the Employer's Particulars) is overly broad, unduly exaggerated and fails to take into account the Employer's condonation of the long-standing, open, continuous and largely unaddressed regular practices that occurred in the Institution on a daily basis throughout the tenure of the Grievor's employment. [45] Allegation #12 reads: The Grievor failed to conduct herself in accordance with the Ministry of the Solicitor General Code of Conduct and Professionalism, including but not limited to: a. Presenting a professional image in the workplace that appropriately reflected the duties, health, safety, and security consideration of the institution, and properly maintaining and wearing issued uniforms as prescribed. b. Refusing or failing to comply with policies, statutes, procedures, and regulatory/safety requirements for which she received appropriate training or orientation and/or for which she should be reasonably aware. c. Engaging in activities that might undermine confidence in our ability to undertake the institution’s role or responsibility with fairness, impartiality, and integrity. [46] To the extent paragraph 37 is conclusion or argument based on the balance of the Union’s particulars, it is sufficiently particularized. To the extent the Union intends to rely on other specific instances they must be particularized. [47] The Union alleges: Mitigating Factors 43. As a consequence of her termination, the Grievor is in the unenviable position of having to find alternative employment to support her young, growing family during a pandemic. -12- [48] The Employer seeks “all information about efforts made to find new employment”. This information will be relevant only to remedy. While there has yet to be a formal request to bifurcate issues related to remedy from issues related to the merits, it appears efficient to me to do so. Accordingly, the Employer’s request is denied without prejudice to renew should it become relevant to remedy at a later date. [49] The Union alleges: Union's Position on the Merits 49. The Employer's investigation precipitating the discharge was procedurally defective, and constitutes an unreasonable exercise of management rights and a violation of the Collective Agreement. …. 52. The Employer condoned all of the alleged misconduct which had become standard practice at the Institution prior to the Grievor's discharge. [50] To the extent paragraphs 49 and 52 of the Union’s particulars are, as they appear to be, conclusion or argument based on the balance of the Union’s pleadings, they are sufficiently particularized. To the extent the Union intends to rely on other specific instances they must be particularized. [51] At various points I have indicated to the extent the Union intends to rely on other specific instances they must be particularized. Any such further particulars must be provided no later than March 31, 2021. Dated at Toronto, Ontario this 11th day of March, 2021. “Ian Anderson” ______________________ Ian Anderson, Arbitrator