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
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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.
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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.
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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
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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.
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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