HomeMy WebLinkAbout2013-1169.Ranger.22-03-17 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
GSB#2013-1169; 2013-1170; 2016-0302; 2016-2388; 2018-0102; 2018-0615
UNION#2013-0424-0002; 2013-0424-0003; 2016-0424-0001; 2017-0424-0001; 2018-0424-0008;
2018-0424-0010
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Ranger) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Dan Harris Arbitrator
FOR THE UNION Craig Flood
Koskie Minsky LLP
Barristers & Solicitors
Counsel
FOR THE EMPLOYER Jonathan Rabinovitch
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING March 15, 2022
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Decision
[1] These matters deal with a number of grievances filed by OPSEU on behalf of the
grievor, Robert Ranger. Mr. Ranger is employed at the Ottawa Centre Probation
and Parole Office (OTTC). The hearings in these matters have been ongoing for
some time. At this juncture we are hearing evidence regarding an incident which
occurred on January 24, 2018 at OTTC involving a client who had reported to
OTTC but should have been reporting to the Ottawa East Probation and Parole
Office (OTTE). Mr. Ranger was working the counter and was serving this client.
He received a 5-day suspension as a result of the actions that transpired that day.
[2] This decision deals with an evidentiary motion for a ruling that, in essence, the
Employer has complied with the Board’s production order, given orally at the
hearing on November 4, 2021. At the end of the direct examination of Alex
Champagne, an employer witness, the union requested documents that were
referred to in an email from Mr. Champagne, dated Wednesday, January 24, 2018,
to Audrey Takasaki. At the time, Ms. Takasaki was the Assistant-Manager of
OTTC; Mr. Champagne was an Administrative Support Clerk in that office. That
email, entered as exhibit 53, reads as follows:
Hey,
Just writing as you requested about the events of this morning.
It started with a client that was sent to OTTC and should have been
sent to OTTE. Bob was dealing with the guy at the counter, and asking
him questions as to where he was supposed to report based on where
he lives.
In the log book, I had written in that he was meeting with Hodan. While
April and Janine and I were talking, and trying to trace back the steps
as to how the client ended up here, rather than OTTE, Bob went ahead
and called about getting the client an appointment at OTTE. The client
was getting frustrated, as he was starting a new job, and was worried
he’d have to miss work in order to report at OTTE.
So April went to Hodan to tell her about the fact he was upset, and
Hodan being duty agreed to see the client in order to alleviate his
concerns about missing work, and asked Bob to call OTTE for a new
appointment time.
I was sitting at my desk, and caught the event from the corner of my
eye. Bob was at the counter but closer to Janine’s desk, and then just
proceeded to raise his voice (yelling and stammering) saying that
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people were going over his head, and trying to do his job. That if we
weren’t happy with it, he’d just go home. He was yelling all this directly
at Janine, who was calmly refuting his claims. There were clients in the
waiting room, and he loud out a loud exasperated “fuuuuck” at the end
of the whole thing.
April immediately went to see you, and once the waiting room had
cleared out, Bob went to see you.
Upon his return about 15 mins later, he came back into the office and
was quite forceful with the door. He didn’t slam it, but really yanked the
handle to show everyone he wasn’t happy.
He then dealt with a couple of things at the counter, and then told me
he was going for a smoke.
Its been pretty quiet in here ever since, since nobody is talking to him,
he hasn’t said a word since. No apologies were ever uttered, and
besides Janine initially refuting his accusations, she hasn’t spoken a
word to him. April, Janine and I have had a few email exchanges of
support, since talking in the office right now is uncomfortable to say the
least.
I hope that helps,
(emphasis added)
[3] Following an investigation, which included taking statements from Mr. Champagne
and the other Support Clerks, April and Janine, named in the email, the grievor
received a five-day suspension.
[4] Prior to commencement of the cross-examination of Mr. Champagne, the Union
asked for an Order that the emails referred to in exhibit 53 be produced. Mr.
Champagne had also given evidence of what might be called his exit interview with
Ms. Takasaki when he left his employment at the OTTC. The Union also asked for
any notes taken at that meeting. Finally, the Union subsequently requested of the
employer that it also provide copies of any SMS text messages that may have
been exchanged by these employees that day. The Union took the position that it
would be unfair that it be required to commence the cross-examination without
having the emails in hand. The Employer submitted that in the interests of
efficiency the cross-examination should begin. I agreed with the Union and we
adjourned to the next scheduled day, being November 16, 2021; there is no
dispute that the employer was ordered to make its best efforts to produce the
emails.
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[5] On the resumption of the hearing on November 16, 2021, the Union was clear in
requesting that it sought to ensure that thorough searches had, in fact, been made
for the emails. It submitted that the emails had been sent on the Employer’s email
system, and the Crown should be able to produce these documents. It said that
the Employer ought to have preserved them in view of the resulting discipline
levied against the grievor. With respect to the emails and SMS messages, the
Union submitted that the bona fides of the "best efforts" should be tested by the
Board, and the Board should determine whether or not the documents requested
were available. It said that this matter should be dealt with under oath with viva
voce evidence, in the nature of a voir dire. It said that in fairness it should have
such documents prior to commencing its cross-examination of Mr. Champagne.
[6] The Employer recounted the efforts that had been made to fulfill the three areas of
production discussed above. The Employer said that he had enquired of the
Manager, who will be called to give evidence, and been told that there were no
notes of the exit interview. The Employer also submitted that it had asked the
three employees and been told by them that there had not been any SMS
messages amongst them. It said that the other two employees may be giving
evidence and, if so, they would be available to be cross-examined thereon.
[7] As for the emails, counsel for the Employer recounted the steps that he had taken
to locate any extant emails, without success.
[8] The Union submitted that it was not for Employer counsel to provide the facts
pertaining to the search for the materials covered by the order. The Union again
asked for a factual enquiry into whether or not the documents can be available.
[9] Since the parties were not prepared to make full submissions on these points on
November 16, 2021, the hearing was adjourned to the next scheduled date,
December 16, 2021. That date, and some subsequent others were adjourned due
to the unavailability of the grievor for medical reasons.
[10] These issues again came on for determination on March 15, 2022.
[11] With the passage of time, and renewed efforts by the Employer and its cadre of IT
personnel, it seems that the other emails at issue have indeed surfaced, contrary
to the prior assertions of counsel for the employer, who I have no doubt had been
acting on the instructions of his client. At different junctures in the intervening time
the Employer had indicated to the Union that it would call as witnesses the two
individuals who had actually engaged in the search. In response, the Union made
further production requests as follows:
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In preparation for the hearing of this matter on March 15, 2022, please
produce the following documents and information:
1. Any applicable policies or procedures regarding the
retention of any or all emails sent, forwarded or
received on the computer system used by the
employees of the Crown in Right of Ontario, including
any and all provisions regarding expectation of privacy
of both users and recipients, duration of retention,
and/or the administration and application of any
litigation holds on emails sent or received in respect of
anticipated and/or pending litigation of any form;
2. The resume or curriculum vitae of any person involved
in the search for the subject emails including the
Information Technology (“IT”) specialist and/or person
who conducted the search, including their qualifications,
education, training and experience;
3. Any memo, correspondence, email or other
communication to or from the IT Specialist and/or the
person who conducted the search setting out the
purpose of the search, the parameters of the search to
be conducted and the tools and/or resources to be used
as part of the search;
4. Any and all documents providing details and results of
the search conducted with respect to the emails of
January 24, 2018;
5. Any and all communication to and from any person
involved in and/or witness to the incident of January 24,
2018 regarding any and all text and/or SMS or DM
messages they may have written, received or forwarded
referencing to the incident and/or Mr. Bob Ranger;
6. Any and all documents you intend to rely on.
[12] With the further passage of time, the Employer has advised that it no longer will
voluntarily call the two people responsible for the email searches. It submits that
efficiency and proportionality weigh-in against such a course of action. The Union,
on the other hand, continues with its request that this Board engage in a voir dire
so that the “best efforts” of the Employer in complying with the Production Order
may be tested.
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[13] Our next scheduled day is March 24, 2022. At the request of the parties, I have
prepared these brief reasons. Further, I advised the parties in a "bottom-line"
email, sent March 15, 2022, of the gist of my decision herein.
[14] Emails are increasingly the preferred method of communication in the workplace.
In my view, a review of exhibit 53 demonstrates that the three employees who
witnessed the events that led to the grievor’s five-day suspension were
exchanging their views of the situation in real-time. Their written comments back
and forth would be very useful in the fact-finding role with which the Board is
charged. The parties are agreed that the Employer was ordered to make its best
efforts to find the documents that we know, from exhibit 53, existed at the material
time. As the master of its processes, it is incumbent on the Board to be satisfied
that its orders are being complied with. Further, it is helpful to the fair and
complete litigation of matters being heard before it to have an appreciation of the
processes at play in the workplace. I am told that to date we have had forty-three
hearing days in these matters. I hear the Employer’s requests for proportionality
and efficiency. However, it is both efficient and proportional for the Board to hear
how, and to what extent, this Order was complied with. On November 4, 2021, I
alerted the parties to a decision of mine that was due to be released shortly
thereafter [see: GSB #2013-3791 OPSEU (Plouffe) and the Crown in Right of
Ontario (Ministry of the Solicitor General)].
[15] In Plouffe, the proceedings were rife with the Employer's failure to abide by the
Board's production orders, and with general statements from Employer counsel as
to how they had asked for, but not received, foundational records that ought to
have been in the possession of the Employer. The Board cannot stand by while
the Employer fails to take the Board's Orders seriously. Here it appears that
counsel's instructions were not accurate initially, but with the application of some
effort by the Employer, some emails have come to light. In my view this is a case
where it is appropriate for the Board to hear evidence of what the Employer did to
secure these emails. I note that in Ontario Public Service Employees Union
(Pacheco) and The Crown in Right of Ontario (Ministry of the Solicitor General),
[November 5, 2019] the Board spent 15 days determining whether a production
order would issue.
[16] Once an order has been made, it is incumbent on the Board to oversee its
implementation, if required so to do. In the normal course, orders are made and
they are followed. In this situation, given the conflicting assertions made over time,
I need to be satisfied that it was, and the appropriate course to determine so is to
hear from those who implemented it. Accordingly, the Employer is required to call
viva voce evidence with respect to the best efforts it expended in complying with
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my Order. The process will commence on the next scheduled hearing date and be
completed prior to the commencement of Mr. Champagne’s cross-examination.
[17] As to the Union’s further production request, all but the request for CV’s at item
number 2 are to be complied with prior to the commencement of the cross-
examination of Mr. Champagne.
[18] These matters will continue on the next scheduled hearing days.
Dated at Toronto, Ontario this 17th day of March 2022.
“Dan Harris”
________________
Dan Harris, Arbitrator