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HomeMy WebLinkAbout2018-3680.Grievor.21-05-12 Decision Crown 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# 2018-3680 UNION# 2018-0248-0163 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Grievor) Union - and - The Crown in Right of Ontario (Ministry of Solicitor General) Employer BEFORE David R. Williamson Arbitrator FOR THE UNION Manprit Singh Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel HEARING May 7, 2021 - 2 - Decision [1] A hearing was held on May 7, 2021 in regards to two grievances filed on behalf of the Grievor on October 10, 2018, and July 11, 2019. The first grievance alleges that the Employer failed “to ensure a safe working environment that is free from workplace harassment and/or workplace sexual harassment.” The second grievance contends that the Grievor was subjected to “differential treatment, discrimination and condonation of the same, by failing to conduct a timely workplace investigation into serious claims of misconduct against me.” This second grievance alleges also that the Employer treated the Grievor differently than other OPS employees “in applying their policies contrary to the Ontario Human Rights Code and have abused their management rights.” [2] At the hearing two preliminary matters arose with respect to this matter. First, the Union requests that the Board anonymize the Grievor’s name in this and any future decisions that it issues in this proceeding. Second, the Union seeks an order for disclosure of the personnel file of the employee against whom the Grievor alleges sexual harassment. [3] The Union submits that it seeks to anonymize the name of the Grievor in decisions issued so as to protect the Grievor’s privacy in light of the sensitive nature of personal and medical information at issue in the matters before the Board at this hearing. [4] In opposing the Union’s motion for anonymization the Employer took the position that the Union had not met the onus of demonstrating an exceptional or compelling privacy interest that outweighed the presumption of publication inherent to the open court principle. [5] Both Parties referenced and relied upon Arbitrator Abramsky’s decision in Re OPSEU (Cull) v. Ontario (MOHLTC) (2017 CanLII 1798). [6] Having heard the submission of the Parties, I am satisfied that this is an appropriate case for anonymization. Accordingly, in the instant decision and subsequent decisions there will be anonymization of the names of both the Grievor and the individual against whom have been brought allegations of sexual harassment. - 3 - [7] In addressing the second preliminary matter the Employer opposes production of the personnel file of the employee against whom the Grievor has made allegations of sexual harassment. It does so both on the basis of relevance as well as seeking to protect the privacy of the employee. [8] Having heard the submissions of the Parties, I hereby order the production of documents contained within the file of the employee identified in the foregoing paragraph seven against whom the Grievor has made allegations of sexual harassment and which pertain to the following issues and specified time periods: (i) Any documents relevant to this employee’s lack of participation in any WDHP investigation into the alleged harassment of the Grievor; (ii) Any disciplinary or counselling notes on file from the Fall of 2016 to the present time; (iii) Any conflicts of interest filed by this employee from the Fall of 2016 to the present time. (iv) Any documents relating to the transfer of this employee to the institution where the alleged harassment of the Grievor occurred. (v) Any documents relating to COCAP or CSOI investigations into this employee’s alleged harassment of the Grievor. [9] Employer Counsel will review this employee’s file and provide to the Union all documents relevant to the issues and time periods identified above, subject to the Board’s deemed undertaking rule. [10] With respect to health information contained in the relevant documents to be provided, Employer Counsel may redact details and information that is not relevant to the issues in dispute in the interest of protecting the employee’s privacy. The Union retains all rights to challenge the propriety of any such redactions. Dated at Toronto, Ontario this 12th day of May, 2021. “David R. Williamson” ________________________ David R. Williamson, Arbitrator