HomeMy WebLinkAbout2006-1932.Barillari.09-06-09 Decision
Commission de Commission de
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règlement des griefs règlement des griefs
Crown Employeess
Grievance Settlement Grievance Settlement
des employés de la des employés de la
BoardBoard
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GSB#2006-1932 GSB#2006-1932
UNION#2006-0211-0008UNION#2006-0211-0008
IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION
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THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT
BBeeffoorree
THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD
BETWEENBETWEEN
Ontario Public Service Employees Union
èÏÔÎÏ
(Barillari)
- and -
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFOREVice-Chair
Joseph D. Carrier
FOR THE UNION
Tim Hannigan
Ryder Wright Blair and Holmes LLP
Counsel
FOR THE EMPLOYER
Ferina Murji
Ministry of Government Services
Counsel
SUBMISSIONS
November 24, December 8 and December 18,
2008.
HEARINGAugust 28, 2008; January 19, February 18, 19
and February 27, 2009.
DECISION
[1]The issue presently before me is a Motion by the Employer to strike most if not all of the
?particulars? which were submitted by the Union in response to an Order of this Board
dated July 21, 2008. That Order read as follows:
?BOARD ORDER
The Board is seized of a grievance dated October 30, 2006 filed by the Grievor Ms. Barillari. The
Employer has made a number of requests for particulars, but none have been provided to date. At
the hearing, Counsel for the Employer raised a motion asking for particulars.
Having regard to the submissions and positions of the parties, the Board hereby directs that the
Union provide particulars of the facts on which it and the Grievor rely, specifically with respect to
allegations of discrimination, harassment, unfair treatment or any other allegation on which the
Union/Grievor intends to rely in support of its contention that the Grievor?s termination was
unjust or improper [except any matters that the Union might not have reasonably anticipated] and
which may arise during the presentation of the Employer?s case. These written particulars are to
include not merely legal conclusions but, in addition, the facts which the Union and the Grievor
assert support any such conclusions and demonstrate the discrimination, harassment and
consequent unjust dismissal as alleged. The particulars must also include a fulsome explanation
of the Union/Grievor?s specific complaints regarding the delegation of authority issue which
explain precisely what the purported problem is with respect to the delegated authority to
terminate and any relevant documents, or policies and/or authorities that the Union intends to rely
upon in its claim that Mr. Beauchamp did not have the requisite authority to terminate. With
respect to each act or omission alleged, the particulars shall indicate what was done or not done,
when, where, by what means and by whom and, to the extent motivation may be a relevant factor,
with what motivation
Particulars, in the specific form noted above, are due to the Employer no later than Friday August
8, 2008.
Failure to comply with the specific terms of this Order may result in the Union being precluded
from adducing any evidence on matters not particularized.
Leave of the Board will be required should the Union, during the subsequent course of the
proceedings, seek to adduce evidence that was not previously particularized or to tender
documents not previously produced to the Employer.?
[2]This matter originally came on for hearing on or about February 14, 2008. Preliminary
issues were raised at that time concerning this Board?s jurisdiction and the possible
deferral of the complaint here to a complaint pending at the Human Rights Tribunal. My
outline of the matter then before me and the issues are set out at pages 1 and 2 of my
decision which was released on or about April 10, 2008. The following is
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the introduction to that decision at pages 1 and 2:
?Before me is the grievance of Rosie Barillari dated October 30, 2006 alleging that she was
?dismissed without just cause? from her position as an Income Support Specialist with the
Ministry of Community and Social Services (Ontario). The letter of termination from Mr. Rick
Beauchamp, Regional Director (Acting) was dated October 23, 2006. The letter outlines a litany
of behaviour which was characterized as insubordinate and/or inappropriate. The conduct
related to the Grievor?s alleged failure to co-operate in providing medical information and/or
attending for an independent medical examination relevant to an absence or series of absences
from work. The Grievor, through her Union, has requested that this hearing before the Grievance
Settlement Board be deferred pending the hearing of a complaint which was filed with the Ontario
Human Rights Commission by the Grievor on or about October 20, 2006, that is, just prior to her
termination.
The Employer, represented by Mr. George Parris, argues that the matter should proceed before
the Grievance Settlement Board. As at the last day of hearing before me, Counsel advised that the
Human Rights Commission had not yet scheduled the matter for hearing but was considering
whether or not to assume jurisdiction, dismiss or defer the matter to that before the Grievance
Settlement Board.
In the circumstances, the Parties ask that I determine:
1) my jurisdiction to deal with the Grievor?s unjust dismissal complaint and, in particular,
any issues which might arise relevant to the Ontario Human Rights Code.
2) Whether or not to defer the matter before me pending a decision by the Ontario Human
Rights Commission concerning the Grievor?s complaint filed there
.
My decision is set out at page 7 of the Award as follows:
?In the circumstances before me, the Union has been reticent to clarify its intent to rely on
discriminatory conduct. However, it has confirmed its intent to bring forward every argument and
to pursue every issue necessary to show that the Grievor was terminated without just cause.
Further, it has confirmed that any rights which the Grievor might have with respect to her
termination would not be waived. It is, therefore, clear that the Union will be obliged to pursue
and that this Board will be obliged to consider the Employer?s conduct and the Grievor?s
termination in the context of potential violation(s) of the Human Rights Code.
I conclude that this is an appropriate forum to address those issues. Further, since the
Commission has yet to confirm its intent to proceed, I direct that the matter be scheduled to
proceed before the Grievance Settlement Board.?
THE DECISION
[3]I have reviewed numerous times the ?particulars? provided by Union counsel as well as
the attachments prepared by the Grievor herself. I have also taken into consideration the
submissions of both counsel, in particular, those of Ms. Murji, Employer?s counsel, who
argued strenuously that I should strike the Union?s particulars without permitting an
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opportunity to revise or amend the information provided. Indeed, notwithstanding that
the Union had considerable time within which to prepare, perfect and submit it?s
particulars, those which were provided were totally inadequate. I am, nonetheless, of the
view that this is a case in which that opportunity should be granted to the Union. Here,
the Union put forward or adopted the ?Grievor?s particulars? as its own without the
meticulous editing which they obviously needed. There was no clear explanation offered
for that error, but, I am prepared to infer that volunteering those reasons might have put
the Union and its counsel in breach of duties of confidentiality.
[4]In any event, few, if any, of the particulars provided comply with the Order of this Board
set out above. Indeed, as framed they exhibit a total disrespect for this Board, its Order
and its practices. Additionally, some of the particulars provided, upon explanation, relate
to discipline previously imposed upon the Grievor and not grieved. Such discipline, of
course, represents part of the Grievor?s employment record and is not normally subject to
review at a later time as a challenge to termination. It is inappropriate that this board be
asked to sift through a myriad of allegations and loose statements in an effort to
determine which, if any, constitute valid or substantial particulars. It was to avoid such a
scenario that the original Order was meticulously framed.
[5]In the circumstances, I reject the particulars as framed in their entirety and, extend to the
Union an opportunity to file a Motion to amend its particulars to comply with the original
Order. In doing so the following terms will apply:
1.The Union shall within twenty-one (21) calendar days of this Award provide the
Employer?s counsel and the Grievance Settlement Board with Notice of such Motion.
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2.The Motion shall be accompanied with the amended ?particulars? prepared in accordance
with the Board?s original Order for particulars set out earlier in this Award;
3.The Motion shall be brought on for hearing before this Vice Chair on a date to be set by
the Registrar upon consultation with this Vice Chair;
4.In the event the Motion or amended particulars are not received within the timeframe
specified, the Union shall be precluded from adducing any evidence whatsoever
concerning such matters.
5.In the event the motion and amended particulars are received within the timeframe
specified, such particulars shall be subject to the scrutiny of the Board. Any which are
not framed in the manner directed, or, which do not comply with my Order of July 21,
2008 shall be rejected.
[6]I will, of course, remain seized of this matter in all respects.
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