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HomeMy WebLinkAboutMartin et al 21-12-081 IN THE MATTER OF AN ARBITRATION BETWEEN: THE COUNTY OF LENNOX AND ADDINGTON (the “Employer”) -and- ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION AND ITS LOCAL 457 (the “Union”) AND IN THE MATTER OF SEVERAL GRIEVANCES REGARDING VACATION SCHEDULES Louisa M. Davie - Sole Arbitrator For the Union: Mae Jane Nam Farnaz Talebpour For the Employer: Steve Menard 2 Interim Award There are 9 grievances before me, each of which allege a violation of the Management Rights and Vacation articles of the collective agreement between the County of Lennox and Addington (“the Employer”) and the Ontario Public Service Employees’ Union, Local 457 (“the Union”). Broadly speaking the grievances are individual and policy grievances which claim that the Employer’s process of approving vacation requests, and its denial of certain vacation requests made by individual grievors, violate the collective agreement. Both parties requested an order for the production of particulars and documents. Both parties objected to the scope of the order requestd by the other party. The parties made submissions via video conference on November 30, 2021. This interim award addresses these matters. I have considered the oral submissions of the parties and consider it prudent to make some preliminary observations about the issues surrounding the request for particulars and the production of documents which I have considered in making my determinations herein. First, an arbitrator has jurisdiction to order particulars and the production of documents pursuant to section 48 (12) of the Labour Relations Act. Arbitrators will order prehearing production of particulars and documents to facilitate an efficient and expeditious hearing process and avoid document related delays. 3 An arbitrator will order particulars so that the parties know what case they have to meet. A party is required to particularize its claims so that the other party knows the “who” “what” “where” “when” and “how” of the allegations made against it. As the matter was addressed in the submissions I note now that particulars may, but are not required to, set out the legal principles or arguments which apply to those factual assertions. I accept that in providing particulars a party is not required to provide its legal argument. A party must particularize the essential facts upon which it relies but need not particularize evidence or the legal arguments it intends to make about those facts. Similarly, I accept also that in response to a request for production of documents a party is not required to create a document. For example, a party may, but is not required, to create lists or summaries. In ordering advance production of documents an arbitrator does not decide the admissibility of documents at the hearing. The test for pre-hearing production of documents is not whether such documents are “relevant and admissible” as evidence during the hearing of the merits of a grievance. Instead, at the pre -hearing stage, the test is relatively low, namely whether the documents are “arguably relevant”. In this regard the arbitral jurisprudence notes only that there must be a nexus between the documents being requested and the matters in dispute at the hearing. Advance production avoids unnecessary delays at the hearing which may be caused when parties need to request adjournments to review documentation. Advance production of particulars and documents may also help to promote settlement discussions as the parties have more information to enable them to weigh the strengths and weaknesses of their case. It may also assist the parties in narrowing the issues in dispute and may facilitate agreement on facts which will then not have to be proven at the hearing through oral testimony from witnesses. 4 Finally, I note that prior to the September 22, 2021 hear ing in this matter the parties provided to each other certain documents and particulars. Specifically, the documents and particulars which have been exchanged include the “Vacation Approval Criteria” for 2017, 2017/2018 and 2018/2019, and some particulars of the facts giving rise to the individual grievances. Although not included in the Book of Documents provided prior to the November 30, 2021 video conference it appears from the particulars provided by the Union on September 3, 2021 that the Union also has a copy of a May 2020 “Vacation Thresholds 2020” document and a February 12, 2021 “Vacation Thresholds” document which form the foundation for the two Union Policy grievances and the Kuipers Group grievance before me (2020-0457-0003, 2021-0457-001 and 2021-0457-0003). I have not had an opportunity to review these 2020 and 2021 “Vacation thresholds” documents. For ease of reference these various “Vacation Approval Criteria” and “Vacation Thresholds” documents will be referred to a the “Vacation Policies” throughout the remainder of this interim award. As is evident below, my order and direction herein is based on the applicability of those Vacation Policies to the facts of the various grievances. Having regard to the principles set out above, in the circumstances of this case, and to the extent it has not yet done so, I order and direct the Employer to provide to Union counsel as soon as practicable, and in any event no later than January 6, 2022 the following: 1. Particulars and all arguably relevant documents relating to the 2020 and 2021 vacation requests of the grievors which were denied. Such particulars and documents to include a) when the vacation request was received by the Employer b) what part of the relevant Vacation Policies the Employer relied upon or applied to deny the request 5 c) where another employee was granted vacation for the same day on which a grievor was denied vacation the name, seniority, classification, and location of work of such other employee and the date upon which such other employee submitted their vacation request. e) what, if any, operational requirements existed and were applied to deny a grievor’s vacation request f) particulars of the process (es) used to approve or deny vacation requests in 2019, 2020 and 2021 2. Particulars and all arguably relevant documentation, including letters, emails, notes, directions, guidelines, and reports related to the Employer’s determination of vacation thresholds in 2019, 2020 and 2021. Such particulars and documentation to include all particulars and documentation relating to “operational requirements” which were determined to be applicable in setting vacation thresholds in each of those years. To the extent it has not yet done so, I order and direct the Union to provide to Employer counsel as soon as practicable, and in any event no later than January 17, 2022 the following particulars and all arguably relevant documents: 1. For the policy grievances, if the Union alleges that the 2020 and 2021 Vacation Policies are unreasonable it must particularize the facts (not evidence) upon which it relies to support that allegation. In the case of the individual grievances the Union to provide particulars of that aspect of the Vacation Policies it alleges is unreasonable or was not complied with when a grievor’s vacation request vacation was denied. 6 2. The 2017, 2018 and 2019 Vacation Policies provided in the Book of Documents are identical (but for specific individual dates during the December holiday season). In these circumstances the Union is directed to provide a) particulars of the “past practice” upon which the Union relies in support of grievances 2020-0457-0002, 003 and 004 and 2021-0457-001, 002, 004 and 005. b) particulars of any differences or deviations from that alleged past practice for the 2020 and 2021 vacation years including particulars of the claim that the thresholds in 2020 and 2021 were unduly restrictive c) particulars of the specific remedy sought for each individual grievor including all alternative remedies sought. I have deliberately provided different dates for the production of the particulars and documents of each party so that the Union can respond meaningfully to the Employer’s request for particulars with some understanding of the Employer’s vacation approval process and the rationale why individual vacation requests were denied. It is hoped that will lead the parties to work towards an Agreed Statement of Facts which will obviate the need for a lengthy and costly hearing. Dated this 8th day of December 2021 Louisa Davie