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HomeMy WebLinkAbout2019-1995.Jackson.21-05-11 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# 2019-1995; 2019-2941; 2020-1545 UNION#2019-0290-0012; 2020-0290-0004; 2020-0290-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jackson) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Kevin Banks Arbitrator FOR THE UNION Iliad Nazhad Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING March 17, 2021 -2- DECISION [1] The Union and Employer have agreed that I will hear three individual grievances filed by Ms. Jackson together. The first alleges unjust discipline and harassment, while the second and third allege further discrimination and harassment over a roughly three-year period. A fuller description of the grievances and proceedings to date can be found in my decision of April 26, 2021. [2] In that decision I addressed an Employer motion to strike numerous particulars from the Statement of Particulars supplied by the grievor and the Union. I directed that the grievor and the Union provide further and better particulars. The parties have agreed that the Union and the grievor will have until May 27, 2021 to do so. [3] The Union has requested an order for production of specific documents and records. It maintains that they are arguably relevant to the matters put in issue by one or more of the grievances. The Union refers me to the following decisions: OPSEU (Koonings) v Liquor Control Board of Ontario 2006, GSB 2003-3101, (Gray); OPSEU (Tone) v Ministry of the Solicitor General and Correctional Services 2000, GSB 2693/96 (Dissanayake) [4] The Employer resists these requests, maintaining that they are not arguably relevant and in many instances constitute what it calls a “classic fishing expedition”. The Employer refers me to OPSEU (Union Grievance) and Ontario (Ministry of Community Safety and Correctional Services), GSB Nos. 2003-3766, March 31, 2004 (Mikus), 2004 CanLII 55354 (ON GSB); OPSEU (Patterson) v. Ontario (Ministry of Children and Youth Services), GSB Nos. 2003- 1588, etc…., April 23, 2007 (Abramsky); OPSEU (Sin) v. Liquor Control Board of Ontario, GSB No. 2005-3601, July 24, 2007 (Dissanayake). [5] The general test for whether evidence must be disclosed is arguable relevance, understood as follows: “[e]vidence must have a probative nexus with an allegation of fact that has been put in issue by one party and disputed by the other before it can be said to be arguably relevant.” See Koonings, at para 19. [6] As discussed in my April 26, 2021 decision, given the longstanding commitments of the parties to full disclosure in Articles 22.14.4 and 22.14.5 of the Collective agreement, parties must generally particularize their allegations of fact prior to demanding disclosure of evidence arguably relevant to those allegations. As Arbitrator Gray concluded in paragraph 19 of Koonings: “[t]he arguable relevance enquiry, and hence an order for production, may be premature if the issues in dispute have not been clearly defined”. [7] These considerations distinguish a justified request for production from what is colloquially referred to as a “fishing expedition”: -3- A “fishing expedition” is said to be an endeavour “not to obtain evidence to support [a] case, but to discover whether [one] has a case at all”…. If one can have production only of documents arguably relevant to allegations of fact already put in issue in the case at hand, it follows that there cannot be production in aid of discovering a case not already asserted. (Koonings, at para 20) A “fishing expedition” is thus essentially an attempt either to obtain disclosure of evidence without first having made a sufficiently particularized allegation of fact disputed by the other party, or to obtain disclosure of evidence with no probative nexus to any such allegation already made. As Arbitrator Gray points out, “[v]iewed in that way, the “no fishing expedition” test is really nothing more than a corollary of the arguable relevancy test”: Koonings, para 20. [8] With these considerations in mind, I turn to the disclosure requests in dispute between the parties. These are listed in the Annex to this decision. [9] I will deal first with disclosure requests pertaining to the discipline imposed upon Ms. Jackson. [10] The evidence and Statements of Particulars before me indicate the following. On May 6, 2019 the Employer imposed two separate 15-day suspensions on Ms. Jackson. The first was in response to an incident on October 25, 2018 in which the Employer alleges that Ms. Jackson allowed youth to access contraband, namely hot sauce, left that hot sauce in the Roy McMurtry Youth Centre (RMYC) servery, and left 11 youth unsupervised in a dayroom. The second was in response to two incidents. In the first incident, the Employer alleges that on October 25, 2018 Ms. Jackson allowed a program to be run by a youth during quiet time contrary to Employer policy and direction, and then was insubordinate in failing twice to submit an Occurrence Report in connection with the incident. In the second, the Employer alleges that on November 18, 2018 Ms. Jackson violated Employer policies by using a Ministry computer to play music on “Sound Cloud” for a group of youth at the RMYC. [11] The Union and the grievor have not in their Statement of Particulars denied that Ms. Jackson did the things that the Employer alleges her to have done. Rather, they allege that the Employer had earlier condoned much of the conduct for which the grievor was disciplined, that the Employer was aware that the youth involved in the quiet time incident had been allowed to do what he wanted during quiet time, and that the grievor was subject to differential adverse treatment in the decision to discipline her, on the basis of her race, her gender, her disability, and because of her “relationship approach” to towards the youth persons in custody at the RMYC. [12] My decision of April 26, 2021 entails that the Union and grievor’s Statement of Particulars does not provide sufficient particulars of any incidents of the -4- Employer’s condoning hot sauce or Sound Cloud use or similar actions allegedly contrary to Employer policy. Nor does it allege particular instances in which either similar allegations of misconduct or actual misconduct by other employees were or was treated differently and less severely by the Employer. [13] As a result, at this point in time there is no sufficiently particularized allegation of fact that has been put in issue by one party and disputed by the other with respect to what Ms. Jackson did in each of the incidents in question, or with respect to whether any other employee engaged in similar actions that were either condoned or treated differently by the Employer. Requests for disclosure of evidence with respect to such matters therefore do not meet the arguable relevance test. [14] Accordingly, I decline to order production of items b and e in the Union’s list of disclosure requests. Based on the Union’s particulars, it appears that each of these items relates to factual matters which are not in dispute. [15] I also decline to order disclosure of item p in the Union’s list. The allegation that other employees regularly play music on Employer equipment at the RMYC remains insufficiently particularized. [16] The Union seeks, in item g, evidence concerning the Employer’s investigation and decision making with respect to the discipline that it imposed on Ms. Jackson. Item g also seeks information concerning the Employer’s decision- making with respect to whether to impose discipline on other YSOs in connection with the hot sauce, quiet time and Sound Cloud incidents. To the extent that the evidence requested was considered by management in deciding to discipline Ms. Jackson, it must be disclosed. To the extent that the evidence requested was considered by management only in decisions to discipline other YSOs, it need not be disclosed, except as follows. The Employer must disclose any document communicating to another YSO management’s decision to impose or not to impose discipline on that YSO in connection with any of the incidents in question, and any document communicating to that YSO and the reasons therefor. In the absence of such documents, the Employer must disclose any other documents recording such decisions and the reasons therefor, to the extent necessary to disclose this information. This information is arguably relevant to the issue of whether the Employer’s discipline of Ms. Jackson was just and reasonable in the circumstances. [17] Item h seeks emails between two YSOs. The Union says that each was a witness who supplied an Occurrence Report to the Employer concerning the hot sauce incident. The Employer responds that it is not clear whether management ever saw such correspondence, and says that this item amounts to a fishing expedition. If the emails in question came to the attention of management while it was making its decision to impose discipline upon Ms. Jackson, they must be disclosed. If not, the Union has not established that they are arguably relevant. -5- [18] Item i seeks emails between a YSO and management representatives. In argument, the Union limited its request to the time period between October 25, 2018 and May 6, 2019 – the period of time during which disciplinary action against Ms. Jackson was under consideration my management. The Union submits that the YSO in question is a witness and a complainant against Ms. Jackson. In argument, it clarified that it seeks only those emails concerning the subject matter of the discipline or problems that this YSO had working with Ms. Jackson. Any such emails read by management representatives considering whether to impose discipline on Ms. Jackson are arguably relevant to the issue of how information from the YSO in question may have influenced management’s decision and must be disclosed. [19] The Union seeks items a, f, j, and r on the grounds that they are arguably relevant to its allegation that Youth Person F was not required or expected to do quiet time, that rules do not apply to him in same way as to other younger detainees, and that he has an individualized plan under which he leads other youth in a workout program. The Union’s position is that these alleged facts are relevant to the issue of just cause for discipline in relation to the quiet time incident. The Union has provided sufficient particulars that if proven could arguably permit an inference that the Employer was aware that the Youth in question was not subject to quiet time rules or restrictions. This is arguably relevant to whether there was just cause for discipline. [20] The log book records referenced in item a have a sufficient probative nexus to that question. However, the request is overbroad. The Employer must disclose only those entries in the log book records specified in item a that are related to Youth Person F. [21] With respect to item f, the Union indicated in argument that it would be agreeable to a summary of the video provided by someone who could confirm it to be accurate. The request nonetheless remains overbroad. The Employer must disclose such a summary of any video within the scope of item f that provides information on the activity of Youth Person F during quiet time. [22] Item j also includes arguably relevant information but is overbroad. This information must be disclosed to the extent that it is about whether Youth Person F was required at the relevant time to participate in quiet time, and if not, what activities that Youth Person was permitted to undertake during quiet time. [23] The Union submits that item r is about the special privileges to not participate in quiet time that Youth Person F had at the time of the quiet time incident, in that the complaints in question raised concerns about those privileges to management. The framing of item r is broader than that, however. The Employer must disclose the evidence in item r, but only to the extent that it raises concerns about Youth Person F’s privileges during quiet time. -6- [24] Item k includes information on the Employer’s policy and practices regarding hot sauce. It is however overbroad, extending to all food and sauces. The Union has not alleged that any other foods or sauces have potential to be used to harm people and therefore might be treated as contraband. There is no basis upon which to conclude that evidence about other foods is arguably relevant. The Employer must disclose the information in item k, but only to the extent that it relates to hot sauce. [25] Items c and m in the Union’s disclosure request relate to allegations of discrimination and harassment extending beyond the Employer’s decision to discipline Ms. Jackson. Item c requests evidence concerning two transfers of Ms. Jackson between units. Item m requests, in essence, any messages sent to or from management concerning Ms. Jackson during the period between January 1, 2017 and June 1, 2019 raising any issues concerning her character or work performance, or containing directions to monitor her or to transfer her between work units or assignments or complaints or concerns about her. [26] In my decision of April 26, 2021 I determined that many if not most of the factual allegations relating to the grievor’s discrimination and harassment claims were not sufficiently particularized. I have carefully reviewed the factual allegations that are sufficiently particularized. These allegations are essentially that: (1) YSM Theriault was critical of the grievor’s relationship approach to custody, yelled at her in the course of one disagreement about it, failed to approve an activity request proposed by Ms. Jackson, and declined on at least one occasion to meet with her to discuss issues of concern to Ms. Jackson; (2) that YSM Rajroop told her not to write up Youth Person F for discipline following an incident for which Ms. Jackson believed he should be disciplined; (3) that YSM Ricketts made several disparaging remarks to Ms. Jackson regarding her suitability for her job and failed to respond to program proposals made by Ms. Jackson; and (4) that Ms. Jackson was twice transferred between units in ways that adversely affected her, pursuant to memoranda that she received from Ms. Christina Galina. There is no information in the Statement of Particulars concerning which managers were involved or would reasonably be expected to be involved in the decision to transfer Ms. Jackson. While the grievor and Union’s Statement of Particulars contains several sufficiently particularized allegations of adverse treatment of Ms. Jackson at the hands of her colleagues, it contains no allegations indicating that management was aware or should have been aware this treatment. [27] It is difficult to see how, if accepted as true, these allegations might support an inference that Ms. Jackson’s race, gender or disability was a factor in management’s decisions to transfer Ms. Jackson. The allegation that the employer discriminated against Ms. Jackson by transferring her between units is not sufficiently particularized at this point in the proceedings. I therefore decline to order production of item c at this time because the Union has not established its arguable relevance. -7- [28] It is also open to question whether the Statement of Particulars alleges facts that could support a finding of discrimination in other conduct by the Employer. The Employer has indicated that in the absence of further and better particulars from the Union and Ms. Jackson it intends to bring a motion to dismiss one of more of the harassment and discrimination grievances, on the grounds that the Union and grievor’s Statement of Particulars fails to disclose a prima facie case that the grievor’s rights under the Collective Agreement were breached. [29] An order for disclosure with respect to a grievance that was soon afterwards dismissed for failing to state a prima facie case would serve little purpose. The Union has indicated that it and Ms. Jackson intend to provide further particulars by May 27, 2021. Once that is done I will be in a better position to fully and finally determine the arguable relevance of the evidence sought in items c and m, if it remains necessary and appropriate to do so. [30] Nonetheless, some elements of item m are arguably relevant to the grievor’s claims of unjust discipline, and specifically to her claim that the decision to impose discipline inappropriately reflected hostility towards her relationship custody approach to her duties. It appears that YSM Theriault was involved in the decision to discipline Ms. Jackson and that YSM Ricketts was her immediate supervisor for much or all of the time in question. I direct that the Employer disclose all emails, correspondence or other messages or documents relating to Ms. Jackson’s work performance or character written by YSM Theriault between January 1, 2017 and May 6, 2019, or written by YSM Ricketts and communicated during that time period to any member of management involved in the decisions to discipline Ms. Jackson on May 6, 2019. [31] Of course, nothing in this decision relieves the Employer of its obligation to disclose any evidence upon which it intends to rely to discharge its burden to prove just cause for disciplining Ms. Jackson, and the Union and the grievor may not make use of any information produced in accordance with this decision except for the purposes of these proceedings. Dated at Toronto, Ontario this 11th day of May, 2021. “Kevin Banks” ______________________ Kevin Banks, Arbitrator -8- Annex The Union also requests the following production: a. Unit 3b log book relating to Unit 3b/Cottage 3B and the program room October 1, 2018 to December 1, 2018. b. Daily schedule for Unit 3B October 22, 2018 to October 27, 2018. c. Documents, correspondence, and emails in any way related to the decision to transfer Ms. Jackson to unit 3B in 2017, and then back to Unit 4A in 2019. e. Full video surveillance of cottage 3 B for the quiet time and sound cloud incidents. f. Video recording, or summaries of video logs, or any other activity log, relating to the Unit 3B program room during quiet the week of October 22, 2018 to October 26, 2018. g. Any interview notes, correspondence, occurrence reports, meeting notes, notice of discipline, or discipline (or letter of counsel) imposed relating to the hot sauce, quiet time, or sound cloud incidents, including but not limited to, involving YSO Dave Rozarrio, YSO J. Peckitt, Joanne Ataide, or YSO Chera. h. All emails to and from YSO Chera to YSO Ataide relating to the disciplinary incidents. i. All emails from YSO Chera to YSM Ricketts relating to Ms. Jackson from January 1, 2018 to May 6, 2019. j. Any RMYC document relating to the privileges, protocols, policies, and/or profile of the youth person/junior/YP F., involved in the October 25, 2018 quiet time and hot sauce incidents. k. Any and all correspondence, memos, and/or emails about food or sauces at the RMYC from October 2018 to December 2018, including but not limited to communications from and between Keneisha Ricketts-Boreland and the security manager. m. Any and all emails, correspondence or otherwise sent to or from management relating to Ms. Jackson from January 1, 2017 to June 1, 2019, specifically, any directions to monitor Ms. Jackson, to transfer Ms. Jackson’s unit or work assignment, to manage complaints or concerns raised about Ms. Jackson, or any other issues related to Ms. Jackson’s character or work performance. p. I.T. logs, print server logs, or data summary logs of all computer account users, summarizing websites visited from November 11, 2018 to November 28, 2018, -9- for the work station computer in Unit 3B from which sound cloud was played, including but not limited to that of YSO Dias, YSM Hunt, YSO Haye, YSO Chera, and YSO Yogaratnam. r. Any and all complaints relating to the youth person/Junior/YP F. and/or the Unit 3B program room from August 1, 2018 to December 1, 2018, which were raised to YSM Ricketts, Danielle Theriault, and Tim Bradley by Ms. Jackson or other YSOs.