HomeMy WebLinkAbout1979-0223.Sukhu.81-12-04Between :
P.e.fo~re : ~--. : :
Far tk"e Gi-iWar: -- .----.
ITor t.i?e Emplo~sr: ---
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iit the comzlencenent of the hearing in this case ccunsel
for the ynion, The Ontario ?ublic Se--ice Zx~io;feeS' Znisn,
@:
indicated that he xas not oreoared to go fo---;arc rith respect
to one of two grounds uoon which the c;rievor :.ras disciplined
because the Employer, The Crown In ;tight of Cntario, Xinistr-I
of Correctional Services, had persisted over a considerable
ze:iod of time in refusing to SC~,pi:f him particulars regarding
that ground. Counsel for the Union thereupon requested oe-~~issic.?
to ma!ce a motion to the Board which xas in the nat'ure of a
motion to strike the ground for discipline regarding w‘nich
particulars had been refused.
Counsel for the Employer argued that there igas no bas.ls
upon which the aoard could grant such a motion. tie s.cixL:ted
that the Employer had no d*uty to provide particulars ;o the
Union recjarding the dispu:ed ground because the ground as set
forth by the Employer in its letters to the grievor and
elaborated during grievance meetings was specific enough to
enable the Union to meet the allegation therein. In this
regard, cxnse 1 for the Cm?loyer pointed cut t;hat the infcrma-
tion in the Employer's letter was sufflcienr :c direct 2s
9 rie-for to the behaviour in guesticn and ;Sat suchbe:-,avio.;= xas
fully discussed at the txo grievance meetings between the
Employer and the Union. Further, counsei indicated tha: cr.
t:?s day before the hearing he had provided counsel fcr the
UnionVitSa sta:enent of at least cne witness xh.0 :iculi be
testif-fing regarding this qr0ur.l.
I'
2
Upon due consideration of~the evidence and argument of
'the parties; we conclude that the motion ts,str.i:<e must fail.
-No basis has been shown upon~.which to grant to the Union such
a drastic remedy. .At most, the Union might have been entitled
to an adjournment to enable it to prepare its case based
* upon particulars required by the Board. In this regard, we
decline.to issue.an order requiring the Cmplcyer to su?oly the
particulars that counsel for the Union demanded. 72 do recomriecd,
. however, that within a reasonable time before the next hearins
date, counsel for the Employersupply to-counsel -or the Union '6 _~
a statement of the material facts~ rela~ting to the I'when, jrhere,
what and who" of this ground for discipline. Such an action
should put to rest any lingering ,doubt.that the grievor had net
_. been gi.ven adequate-opportunit$' + ,o..meet.fbe,case agknst him.
Ihsofaj?. as'the;.e'vidence t.0 -da-t,e shows,. the facts Of . . . .
t.fi.is..case are as follows~, On July. 2~, 19.7'9, the ~grievor was
involved in an incident .that.occurred~ in the zead Shift Officer's \
Office/Control Room area of the Ximico Correctional Centre.
.On July .'S, 1979, XI-. Carl-C. De :Giandis, &e 'Superintendent
.of the Cent:e wrote a letter to the, griever which contained
two allegations against him. &parently, ,these -ye (1)
that "you assaulted Mr. R. Kennedy , Iiead shift OffiCeZ" ; ad,
(2) that,~'!.your conduct during this ~incident was not consistent
with the expectations of an emplOy of this Xinistry and :
especially of an eapioyee hoiding your km:<“.,
* .' We use the word "might" because :ie -point out :atk in' this
Award that in order to be "entitled" to an ad.jcuz=--en= t?.e
Unionat least had to show scme reascn why the particulars
were not disclosed to it and disc-ussed in the 9rievance meetings prior to arbitration.
On July 11, 1379, a meetins was ;-.eld in ::Se 303rd 3~2.7
of the Ximico Correctional Centre to investigate the circ.zstances
giving rise to these allegaticns. Therea’fer, on JuL:f 25, 1979,
XZ. De Ciandis wrote a letter to t:re grievor which stated, in y,.'j
pertinent rart:
It is not my intention to rests's evidence in tSis
ietter but to address the twc al:egaticns in my
letter to you of July 5, 1979.
(a) !Jith reference to all.ecaticn ?1 C-hat “you
assaulted >I=, R. xenneiy, :iead Shift Officer",
I am satisfied by the statement that i;e 'deregiven in .p': - * tten form and verbaily at that meeting
that, regardless of any other Tossible cir-
cumstances, you did strike ?ir. Kennedy.
and
‘..,A
(5 I With reference to allegation 32 that "your cond~~f
during this incident was not consistent :~itS the
e-pectarlons of an employee Oi - t:Sis ?!i.ds=r*r
and especially of an enoloyee holding your rank",
I am satisfied that, beginning with your receipt of orders f:on ?i.S.O. through the :2 3uilding
Officer, you did exhibit, in frcnt of subordinat$
off'ce-s L colleagues and superior officers,
inappropriate conduct.
It is, therefore, my decision to impose a penalty cf
suspension from duty wit.hout oay fcr a sericd of ten
(10) days. This susoension4~11 take into acccunt
the days that you :Jere 53lspended withcut >a! ;er.dixj
investigation and days ,witl be added to satisfy
the penal:? imgcsed.
The grievor was suspended without ?ay for 13 days.
On August 7, 1979, the grieve: submit:ed a :zLtten grievance
:
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i
grievance proceeded through Steps One and Yflo'of. the grievance
procedure in a timely &nner. Then, on Semtember 25, 1973, t::e .
Union 'sent a letter to the Grievance Settlement'3oard req.zesting
that an-arbitration hearing be sc.+.eduled in the oresect matter.
On September.27, 1979, the 3oard gave notice to t.he 3mplo:ier
of the application by the Union for the hear‘ing.
On December 11, 1979, Mr. Michael Pratt, a Grievance-classifi-
. cation Gfficer~ with 'the Union:, wrote to Xc. J. 3enesict, the
?lanager, Compensation and Staff Relations; Human Resources
~4anagement.,~for~ the Employer.~ -1.n this letters, Mr.LPratt referred . .
to the ,two grounds,which appeared in.%.. De Grand&' letter
dated July 25, 1979 and stated, .":4y -inter-Jreta~tion of .t:his
-documenf is that-suspens.ion'was imposed both, because :4r. Sukhu
allegedly struck, Mr. Ken.nddy:and also .because of the alleged
misconduct [allegedinpart (5). of 'the. letter]-. .Ii my inter?retaticn
of this document is correct .then.I am sure that you will. agree
that natural-justice requires .Xr. Sukhu .be told eyactly Mat
particular conduct is in question. ':~Once the particulars. of
the charge are.known thenl'i can begin to properly defend Nr.
Sukhu:" The letter ended;r:ith b'requestthat Xr. Senedict
forward such information "as soon as sossible".L
. On January 2, 1980 Yr. Benedict reg1ied.in~writir.g to
Xr . ?ratt as follows: ..- '.
.This is in-reply ~to'your.correspondence of December
ll', 1979;~ .- . . .~
. . The conduct that isreferred to.:<as arq:li' discussed
and reviewed at the Stage 2 meeting dur:Lng whioh ?'r.
c
S*u!thu was represented 5.1 11:. Donahue, O-ia-'- ?*:bLic ..-4-_.,
Ser*/ice Employees Union :e?resentativs . I.: '::-.e
result, the evidence regarding !4r. S-:<:q:: * s >e*,a-;i"ur
has already been presented to both him and the union
and there would seem to be no need to reTeat it
again here. Xr. Sukhu's behaviour xizhin the context
of this evidence was judged that ":/our conduct
during this incident was not consistent with the
expecta - +;ons of an employee of this Yinistr-7 and
especially of an employee holding your rank". "0 ;:
may of course, based on the evidence, characterize
his conduct in another way.
I
The letter identified the Union representative who participated
(y:': in the Stage 2 meeting and essentially suggested t.nat because
the Union could look to the grievor and this Union representative
for the facts relating to this ground, it was not necessary fcr
the Employer to repeat it to the tinion.
:I! ;1 'I
..:I .g
On January 8, 1980, Xi-. Dratt responded that because the
Zmpioyer refused to supply such informatiqn, "I xav find it .-
necessary to seek one or mere adjournments ct delays when
such information is forthcoming at the Arbitration 3earinq.
Frankly, I am iOSS as to how you wiilshawthatsuchinformation
has already been given to us at Stage 2. As you are fully
aware, such meetings are heid in confidence and Will not be
opened up for examination by an Arbitration 3card."
This apparent impasse between the parties persisted until
July 3, 1981 when ccunsel for t:he Union wrote to :lr. 3enedict
reiterating the position taken by ?lr. Jratt and stating:
The particulars to be provided mus: set out, at
the minimum, a concise s:atement cf the ma5ria.l faczs,
actions and cnissions upon which the emnioyer in:ends
to rely as constituting such imcro?er or irregular
conduct, including the time xhen and the sl.ace xhere
the acts or omissions complained of occurred and ' the names of the person' or persons to whom then ac=s
or statements were directed. Unless these oarticnlars
are provided within ample time for the griever ~0 ?re-
- pare his case, it will be the Union's ?csition at
the arbitrations hearing on August 25, 1381, ~that '50
evidence should be permitted to be ied concerniy
the ailegations set out above.
2 Apparently, the only response to this request was the acticn
by counsel for the Employer onthe day before the hearing,
which consisted of.providing counsel for +ae Union with at
least one statement of a.witness that ~OunSei intended to
call regarding the second~ground for discipline.
In his argument.on.the first day of hearing, counsel fo:
-the Unio,n,did not refer to any arbitration cases regarding :
the necessity.to?rovide particulars and the extent to which
grounds &for disciplin~e (.or for -that matter, grcunds forgrieving)
mus'c.be $articularized. Instead, CCUYlSei relied u?on cases . :;:.
interpreting procedural rules of t;?e,Ontario Labour Relations
3oard. 'In this regard, counsel suggested that we-should
follow the O.L.R.3: cases despite the, lack..of a similar
procedural rule in this forum because the rule is, si!?ly an
expression of-a rule-of. natural justice required to be applied .
by both the Ontario Labour Relations Roard and t5e Grievance
SettlementRoard under s.8 of then Statutory Rowers Irocedure Act. . . .
Lie cannot accept,this apparent suggesticn that natzal
justice requires us to regard.the,matter of oarticuiars in
the same way as the O.L.R.B. Arbitrai.juris~rudence ma:tes it
- clear that a labour arbitration hearing, cnlm;nating as it dces a
series of _ steos in a grievance procedure.is unique. :5e >ycess
,
cannot, ' 13 any meaningfui sense, be analogized zo the p:zcess
of a juCSciai or quasi-iudicial proceeding. . The xniq-Jewess 55
arbitration was highlighted in i7e Ilational Zarbours 3oa:d an5
Public Service Alliance of Canada (i974), 7 5.A.C. !2d) I ::;.S.:,
where it was stated, "The grievance procedure [cf which
arbitration forms a part] is not a judiciai cr
pzoceeding . The gr~ievor's rights are no; finally determined
until the matter is disposed of by 5lis arbitration ccmmittee
and it is at this stage that the rules of natural justice come
into play." Id. at 13.
:le do not dcubt that in determining its own "practice and
procedure" under s-36(13) of The Crown Employees Collective
Sargaining Act, 1972*, tSe 3oard must zeet t!-.e requircqer.3 CS
natural justice. TSis Sas ieen tSe case in the area of private
arbitration. And we Frefer 50 take tSe approach to :he
question of particu:lar which has been taken by arbitrators
in private arbitrations. This approach appears to us to 'be
more suitably adapted to the informal atmosphere
surrounding the arbitration Process.
Our o:+n review of the reieVant arbit:al jurispr*Jdence
indicates that laboux arbitrators qezerall:, ta:ke a more flexible,
reasoned vietti re the matter of particulars than do courts cr
other bodies *which Save adopted specific procedural rules. as
was said by Professor ?aimer inhisrecenttext, ?alme:, CclLec=i:-e
l
1972 C.S.O. c.67, as amended 1974, c. 135: 1?T3, c. -3.
Agreement Arbitration in Canada '(137S;, "The basic test
used is whether or not the information gi-ien is sufficient s
to give the 'other party adequate opgortucity to meet the
case against him. ?loreover, even if there is not sufficient
particularity, the board will act only if the other'oart:j
is disadvantaged in some ..,+ay." Id. at 173.
When we begin to apply the foregoing basic test to the
facts before the Doard, several specific issues arise.
These are:
(1) What particulars are "sufficient to give the
other party adequate opportunity to meet the'case
against him"?
(2) Did the disciplinary dot-qnents disclose on their
face sufficient particulars regarding the second ground
for.discipline?
(3) (al SZlould the Soard take into account the
likelihood that sue+; L--cient particlulars were disclosed
to the grievor .and the Union in grievance meetings;
and,
(b) Did the moving party have a duty to show that
sufficient particulars were .not disclosed ant grievance
meetings, or that if they were so disclosed, they
were no longer available.to~ the Snion?
(4)~ 'What relief; if any, should be granted to the oartv .- being-prejudiced by a denial of sufficient garticulars?
iie will consider the above issues seriatim in the remainder
of this Award;
(11 What Darticulars'are "sufficient to cive the otner
sarty adequate ooportunitv to meet the case against hLnl'l
In his letter to the Employer dated July 3, 193i, cour.sel
for the Union asserted that the griever was entitled ta the ~
following ?artic~ui.ars:
The particulars to be Frovided mlust set c'ut, at
the minizmlxm, a concise statement of the material facts,
actions and omissions upon which the emT,loyrer inZen&
to rely as ccnstituting such imprcoer or irregular
conduct, including the time wken and the place where
the acts or omissions complained of occurred and
the names of the Ferson cr persons to whom the acts
or statements were directed. Unless these particcIa:s
are provided within amole time for the griever to ?re-
pare his case, it will be the Vnion's ocsiticn at
t:he a:bitration hearing on .lugUSt 25, 1381, that 20
evidence should be permitted to be led ccncerning
the allegations set out above.
Essentially, counsel reqired a "concise" statement of "*<hen,
where, what and who."
1: counsel was using the :gc:d "concise" in its ordinar:?
meaning of "brief 'I, then we agrae that counsel was reqc'-;-g _- . ..-
the minimu amcunt of ?articclars that might suffice to gi*ie
the griever adequate cp~orr~al'q~ t0 meet the case agahst h51.
Arbitrators necessa rilv have been -iague in defining what cz.- _
stitute sufficient particula:s. See, e.g., Re Xationai XarkOuZs
and Tublic Service Alliance of Canada (19f4), 7 L.X.C. !2?) 1,
at 9-10 (N.S.). Skmilar vagueness was expressed by a learned
arbitrator, 5.3. O'Shea, Q.C., in Re Giibarco Canada Limirae
and Canadian Gnion of Golden Tziana‘?e Y:or!iers (1073: 3 L.X.C.
12.d) 205, 213. :Icwever , it see-s tz -2s. that a brief statement
cf "when, where, what and who" should in most cirx..stances
be sufficient to give a grievor adequacz oppcr>xiity to zee=
the case against him at arbitration.
. --
In the light of the fact that in the .=resent case c'o'unse 1 ,
for the Employer has supplied.to the tinion t:he.statement of
at least one witness regarding the disputed ground for
discipline, we might add that we do not deem such action zo
be necessary to satisfy the requirement of oarticuiari‘q7.
We do not think that it is essential for the sarty su?oiying
particulars to disclose the names of its :<itnesses, nor the
nature of the testimony to be expected for such witnesses.
This seems to 'us to go far beyond the minirura necessary to
give the party requiring particulars adequate opportunity
to prepare its case.
. (2) Did the disciplinary documents disclose on their face
sufficient oarticulars regarding the second grcund for
discinline?
The short answer to this issue is, no. The second qrcilnd
'for discipline, as set forth in the docuiments, was, "your
conduct during this incident was not consistent wit:1 t:le
expectations of an employee of this Xin~istry and especially
of an employee holding your rank." The sole amplification of
this ground in the documents occurred in the July 11 letter
of Xr. DeGrandis when he referred to tnat ground, Saying,
"I am satisfied that, beginning with your receipt of orders
from H.S.O. through the :2 ,Building Officer, you did eshibit,
in front of subordinate officers, colleagues and superior
.I, officers, inappropriate conduct. /
-. _-
These allegations are, on their face, ins:*CS'p'O?t -..--w-v.
to advise the grievor of the "sr'ho, ..4hat, iihen ahd irhere"
of this ground f,or discipline. ?ihile the ailegatiohs contain
vague references to srhen the alleged xisccnduct began ahd
who observed the alleged xisccnduct, there is ~3 indication
of what actio?.s 'by the griever constitated misconduct, When
the ;nisconduct tack slate, nor when it ended. If these
allegations siere the only basis u~on,xhich the :Jnion could
proceed in oreoaring its case for t:he azbitza ticn of t:?e
5 rievance, it would be beyond dispute that the Union lacked
an adequate opgortunity tomeetthe case against the griever.
(3)(a) Should the 3oard take into account the li:celihood
that sufficient oarticuiars were disciosed tc the
orievor and the Ghion III orlevance meezlngs?
The foreaoing cotxlusion brings us to zonsideratlon cf the
consistent =esFonse 0 f the 3n?loyer to the !Jaion's raoeated
requests for particulars, i.e., that."the cobduct zhat is
referred to iJas an;,iy discussed and reviewed at the Stage .?
meeting during which .Vr. Sukhu [the griever) was reoresectec
by Xr. Donahue, Ontario ?ublic Service 3FioyeeS Zaicn
reoresentative. In the result, the evidence regardi-g
.Slr. Sukhu's behaviour has already been szesented to bcth ::- ..-.s
and the Union and there would seen :o be ho need to reTeat I:
again here." The only res?oase of the L'nisn zo this essentiall:
vas that the Z?.pioye: '~OUid have a tiffiCult tize >rZvl?.g =kiS
*
Rut arbitration boards do .take into acco:unt the facz
that the matter ccming to arbitration has pre.~iousl:r gone
through a multi-step grievance ?roceduze involving the .
grievor and the parties to the.arbitration. It would see.3
that, in general, the meetings at these various steps
provide "very adequate opportunity for discussicn and the
provision of particulars directly betxeen the parties."
Re Corooration of the Town of Valiev Kast and T:he Canadian
Union of Public Zmulovees, Local 6.(1?83), 27 L.X.C. (2d)-154,
157 (Kennedy). Especially where as here, the Union never
grieved a refusal .by the Employer to supply particalars ?Urinq
a grievance meeting, the inference his strocg that the necessary
particulars were, 'in all ,likelihood provided and discussed during
l the grievance meetings .involving the-Union and the Zmployer.
As a result, it.seems to us.that in ruling upon a req,Jest
for particulars in-these circumstances a board of arbitration
Ls entitled ~to take into account the.liXelihood that sufficient
particulars were disclosed to the griever and the Union in
the grievance meetings leading to arbitration. Xere, the 3ztployez
claimed that this was so. The Union, which was the par??
requiring particulars, never asserted othersrise. .T,ts only
response xas that the matter 518s incapable of proof because a
board of arbitration will not examine into grievance meetings.
This response was inappropriate 'and, as will be discxsed beio:i,
the Union's adherence to this position proves fstsl,to its ZCticn
See Re Slack-Clemson-Kennedy ~Ltd. 9 I and United StaelwcrY;ers, Lsal --:
(1973), 2 L.A.C. (3d) 3131 (H.D. S-mm), where the L‘zicn :rlaveeE =?ts
refusal of the Employer to supply particalars at a Step .: rrievance
meeting.
1 .;
before t.ke 3ca:d.
in decidinc this issue, xe have Yte?t iR .Cnd several
principles: First, the movin- y ?arty :?as t.‘.e cnx cn its
own mot101? for particulars. Secsndiy , to succeed on a ~.o~ic~.
for ga:ticulars the 7.ovk.q ?a=~-1 7.ust ii-,csr 2.at :he is ?re-
jlzdiced by the refusal to su~?1y ?attizia:s. p+;,?y, 2
board of arbi tration will ;10t exaPi7.e Lnto the substaxe of
natters Ziscusse?. c!xinq qrievaxe neetiys. And fizall:r,
the rules of natural jsutice whit?. gcvern the scs?e of >az:icclazs
to be supplied Cor arbitration ?c:r?osei 52 net necessarily
appl;r rn grievance zneetir.qs. sse Y?C,Z - . . - >a:% of ?ip "a;icy.ai
fiarbours 3oard which .xas qlloted, sz;ra, i?. this a.srard.
Applying the first thiree of these ?rinci?,les z3 k?.e faczs
of t:?is case, we conclude that in order to be entitled 53 an
orier to supply sazticulars, t.".e Cnion here had a ExQ to Co
more t:?an allege that it needed t:-.e sartlc.2lars a-5 t1k.e
disciplinary dot-&Tents 2ii not disci3se then. The 'i'nior. ?.ad
to sS.0~ t.*.at it was net iz ;ossesslon of :I‘.= 3artic.2lazs 5y
virt-e of disclosxes m2ie ir. grievance zeecizcs.
The Unicn kad the ones in ::?e xatter. -0 2ischaz;e k.is
ones, the Unio:: :4as required to s?.c::, inter 31ia. =?.a: i: :<a5
prejudiced by the ref.:sal of ::he Z?,lcy:er L-2 s.x:?:1;. Ce ;ark.?2l3ZS.
i primary elP,ent Of this si-.srding of ?rejucice iic'll? iee.z
to comprise a s,howing that the gartic-iars were nc:
reasonably available to the Union from its OWJn =ecQres
of grievance meetings, frcm its own personnel wk.0 aZ=Pndld
the greivance meetings, or from the grievor. The L‘nion
never made any showing in this'reaard.
'~ ,It does not seein to be, an adequate an&er t= this fail-r=
for the Union to say that the matter is incaoabie of Froof
because. evidence that the necessary ?articnlars :*Tere ref:used
during grievance meetings would be rejected by an a=bit=aticn
board. AS indicated above,. an arbitration board is entitled
to "judicially" note -that it, is comnoti knoT>ledge that discussion
and exchanges. of par'iiculab dd take 3lacE 5;ring t:iese 3eetiqs.
Furtner, while it is true that arbitration 'boardshonour
the confidentiality of substantive ma&& LLers :~rhich are disc-ssed
during meetings at the st%ges of the grievance procedure, it
is not uncommon to receive evidence at least with respect
to procedural matters. As to particulars, ,evidence has teen
received and ruled upon by arbitration tribunals smith zessect
to requests and reqonses regarding $articulars at grievance
meetings bet.ieen union and management. See'ft'r exaqie,
Xe 3lack-Clawson-Kennedy Limited and United S‘t+1'2,qcr:<ers ,
Local 2469 .(1973), 2 L.A.C. (,2d) 301 (H.D.'~rownl, where
the Board considered-and ruied.uoon a,compan$ response
to a union request for'particulars at a Steo 3 grievance
meeting. '.
1
Ye bear in nnind :?a'. t?.ere zi;.iz ke oc?.er reasc7.s
whyy t:?e necessary particzlars xere n-a,lailajle t3 z5.e
on. For ,example, t:?e 'Jr.iC.7 recresectaciv e x50 attend-
ed the Stage 2 meeting might have 5een cnavailakle t3 krief
counsel, a3d the qrievcr night not recall Lr. a rsliaS1e
manner what sarticclars related to the gzo-xnd in ;9Lestio.?.
3r serha?s the Tar: icurars su;?iied dxlng the ;rievar.ce
meet-ngs were too iriccf3?iete to satisfy the reqzirements cf
Ratural justice. 9ut whatever t:ie Circumstances, It surellf
:qas inc*mbent qon tke Znion to demonstrate t::e reason xi-.::
it found it necessary t3 see:? ?ar:iculars ?rCm the 3.~loyeZ
at the arbitratio: stage.
3ecacse the case for the rjnicr, rested 2>on essen:ially
bald. allegations t:?at i; needed the '$ar:ic-lars in question
and the disciplinary doc'xents did net s;13>iy::?em.,we CCr.Cl.2de
that the Union failed tc sustain its onus 31: &rCen of ;ZcCf
on the issue of prejudice ar.d that this fail-re is fatal to
its motion. There Tvas 20 shcwing that f!ze sarticclazs i:.
questior. eit:?er 'were zot disclosed ?urinc t;?e Stage 2 zee:i.?g
or 50: some other reason 5ecaz.e ufiavailzblo :o t?.e L'niCn 1:
the arbitration stage. AS a resillt, :<e ieny C:e rioti cz
the i'nion. The L'r.icn is xzt entitled t3 32 order irCm this
3oard striking t:le seccnd crcu-d 53r discislizx c: req.2iri7.5
the Employee t3 s-??ly 3articu:ars :el25izg Cerec-c.
., . .
Even though we concluded against the 'Jnion on the third
issue, above, we believe that we s‘hould direct scme comments
toward the nature of the relief t3 oe granted in a case of
denial of sufficient particulars because in this case, the .
Union took the unusual position that it was entitled to an
order striking the second ground for dis<:i?line. T:be motior.
to strike, we are qiven to understand;.+asbased upon the
doctrine of estoppel, i.e,, that t:he repeated rafzusal by _.
the Employer to particularize its second ground estoqsed
the employer from relying on that ground.
Generally, the yarty which "has been yejudiced ,by lack
of sufficient particularity . . . [fill be granted] an adjourn-
ment until such particulars are supplied." ?almer, siiora,
at,175. See also Gational Habours Soard, w, at 1C.
It seems that the only circznstances under whic:h an esto??el
has been' raised against the ?arty su~olying inadequate
particulars has been where it *Has shownthat the failure
to supply adequate particu'lars was done with an intent to
mislead and as a result the other party xa,s ?rejsdiced.
As was said in Re Gilbarco, s'qra:
u [IJf an employer were to actively mislead a
union as to the real nat>xe of the subject-.
matter of the grievance and, as a result, t?:,z
un'ion's positicn was ?rejudice&, then the
doctrine of estoccel might 3revey.t ::?e er,-,lc'l-er
from intrcducinc-a fresh justification at C.e
time of the arblt-ation 1hearin.c. . [ 3 '2 z 3.1 s
should not haooen] in cases :ihere the emplcyer,
although being scnewhst :-lg.2e in setzing 2ut
z'2asons, has not interlded to ~isiea~ t!-.s c=i:er t'3rt:i." I'. 3: 122.
. . .
c
I!
I
here to strike the second ;roxd reiied c?on by t?.e Zq:l.zyer.
biere, there -was no evidence that :.i.e Zployer xor2ed 5e
ground wit:? an intent 53 mislead the i'r.icr.. :kreo-rer , even
if repeated ja? faith refusals to ;ar:ic.Jlazizo a ;r32.d
for discipline were sufficient 53 raise an estn??el, "0
estoppel would be raised !?ere. I;e have fc~r.c! that me
refusals by the Znployer were in good fsi2.i. an2 justiflel
because the Union failed. to xa:<e ZC:= a case of SrejuCice
to its oosition s?.CUid the Z.?1oye= ref.2se ts sc:f?ly E:?e
particulars. Fez all t:be Ey lcyer ir.ew , t:le grtixlars
'were available to the Unisr. fzcn its own Ferscrzei ar.2
the griever.
"when, where, what and who" relating to t:he second ground
of discipline. We make this recommendation because, for
whatever reasons,, it is apparent that the ijnion lacks these
particulars. Moreover, the hearing already stands adjourned.
We do not wish to endure a second adjournment should ?ro?er
motion for particulars be made by,counsel for the Union
at the commencement of the next day of hearing. The hearing
of the substance of this matter would be expedited if within
a reasonable time before the next day of'hearing in this cr.. case such a statement of particulars were supplied.
DATED in London, Ontario this 4th day of December, 1981.
"I dissent (n part" (See attached) - b. D. -Kaufman Member
I. S. MaoZregor Xember
1 'cave kad the opzort--it:/ of rea6Lzc '_::e lzzeril axar?
3f the Vice-Ck'sirmn. I cor.cur vet:? the Vice-Chairza7. i:. his
renar!cs and cor.clusion regarding 5e Griever's xozion 3 s=:X<e
the qrour.d for discipline, (Grzuk (3) in the latter of >!r.
;eG=ar.dis to the Griever, of Jul:, 25, 1?73), for :~:?ic;l ~ar:ic.:lars
5ad been refused.
I
Counsel for the Griever motioned, in t?.e alterzati-;e, fzr
a2 Order requir ikq the 2xnployer t3 provide ~azziczlazs, szeciiiz-
ally, a "concise statement of the zaterial facts, scti=zs, a-5
emissions u3cn which the Zmployer Ir.'Pr.C 's to rely as c02s~i~~ti3q
. silcn :myoper or irzeplar condxt, inc1cdir.q 2ke tine xken ar.d
the place where tke acts or omissions zon$lai~ed of ccc-rre?,
ar.d t:he names of *e person or persons to wkcm se acts cr sts=e-
zents were dkected" -- a "c3ncLse" statement of "srf.en, Acre,
what ant? who."
@:,
I dissent wit,, t?.e Vice-Chaizaan's disc3ssi311 of this ;a=:
of the Griever's notion, azd +e refusal c\F the ~~Lse-C~a~z~ar.
of an Order for particulars, for iL -..e follcvl2c zeasons:
-2-
appears to have been 'one :here. __._ comments of -he
Brown and Beatty~in Canadian Labour Arbitretion,
3:1410, at p.100, apply :
II . 0 . whenever aoartv feels prejudiced 'by a
lack of knowledge o'f the other party's ~cs-
ition, prudence as :+ell as fairness dictate
that a request be made at the earliest
uossi5le pdint in 2 I. t:?e ?roceedinqs prior to
i.ie hearing. Iloreover, Twhere such a reraest
has been ,made, but not ccmolied wit-h, the
arbitrator mav recuire t:hat Darticulars je
given. That does not mean that a ?arty must
set out the evidence upon which it :gill be
relying; rather the statement need onl:r
consist of the material facts relating to
each issue in dispute.'l(Zmohasis added)
2. The initial request for particulars was made to the
Employer by the ljnion apgroxiaately 20 - 21 mcnths
prior to the dateof hearing of this motion. The
Znployer's position in response, essentially was that
the Grievor had been given the particulars at the
Grievance level. '+ The oassaqe cf time did noL move
the Employer from tSis position, despite, tb.e Griever ' 3
repeated recuests. In fairness to 'bcth parties t.ne ._
arbitration board has an obiigation where, as hers,
the disciplinary doc3ments do not disclose suffic5er.t
particulars and the Griever requests ?articalsri 21
months before the hearing and the Zmpicyer alleqes
the ,Gj--evor has them, a fact ~0: IXC~SS~il~ h<-Lt tie Z+ZY-
e2.s knowledge tc clear tSe in?asse and := --cilLtst+
the arbitration process by ordering ?artic-lars.
4. While zfie Statut3z.I ?cwers ?'rccedxe Act Eces not
aTply to the withi?ir. :?earl.-.o, It :?as teen said iz
previous decisi3r.s of <his 3oard that +a; Act s:lctA5
3e follcwec? in s?izit eve!: if it does not a~~11
(F!alqh, 212/79) an< zhat if 5.e Farties had -ale zke
effort tc seriously coxxnicate vr=n one ar.ct.*.ez
before the 5earir.g 5kere mzld :la,:e keen a yreclse
delineation azd acre narrow circ~;r.scri;tio~. 05 52s
issues, therebv emeditix 'L-e ?rzcsedinus . - (:-:aE-is,
7/75) and tie 30ard for the sane reason ad.-onis:?e?
the parties as :o the 2eerl fnr a 5~1: ar?d 5:s~k
disccssion Setxeen themelves befre ';e :?eari.?c
in Tan, l/76.
Section 8 of tie Statutory 3owers ?r3cedxe Act re55s:
section should result in an Order for sar<irclars
being made in this situation. Failure 52 a?;l:i the ,
spirit 0 f the Statutory ?owers nrcced-re ;.ct cr. t:?..is
motion would result in a denial of natural iustice.
5.
The test that the Griever must meet as scccested 3y _ .,
the Vice-Chairman in his discussion under issue 3!5;
of his Interim Award, would require tie ,Grievor :c
.?rove a negative, i.e. that he was not in Gcssessicn
of the particulars on the date of the hearing. ":-i.e
\
application of this test would result in any Far+:/
seeking a similar Crder facing an onerous burden,
indeed in the'face of mere argument or allegations
from the oppdsition that the party was a+rised of
the particulars.
6. On a procedural motion as herein, the matter of
whether the 3arty moving discharoes the requisite
onus is secondary to tke discretion in the a-ii;- w--c
rator to imke the ruling Ghich will best facilitate
resolution of the main issue for tie Tarties, and
which will avoid further a%jourrxents. .zi~. 0rZer
requiring the Employer td provide partic.Lars
would meet that end in this case. The isces
set out as .3(5) in the Vice-C?.ai=rran's,.IIIte1:i.:.
Award was not a 30int on :r:?ic5 argument xas
delivered or invited at t5.e hearing, ant, fcr ??.a=
-j-
reason should not 5e a basis of '_::e Inter i.:: .;i;arf
7. it was apparent from t;?e ary3ner.t of Colxsel fzr
the Griever that if !?e were not sc:aplied :~it:? '_:?e
?articalars, :?e and his client irOUi.C? be yejudiced
in yeFaring their case. Ee a?Jlsed t:he 2oar5 z2at
on the date of t3.e heariq, he had 20 reasor.a%e
understanding of the alleqatiocs constituting in-
appropriate cor.duct. IT. 7.-y opinion, t!!e?e=e was nc
evidence u?on which to doubt 3is su2missiozi.
To succeed on t?.is a?olicaticn, the Crievor xas :c=
req.aired to establish that actual zrejudice sro-::.1Z
result from a failxe to snugly ;artlcxla;s, 52t
only *at there was a reasor.able Li:<elihccd =:?at
pejudice would resuit. I am satisfied t:lat :?e ias
established a reasor,able likeli:lcod of ac%al _ =reSildi=e.
8.
It was apparent from arcu.7zer.t of Coc:?.sel fcr r'.e
Employer and the Crievoz t.".at 20 substa:ziaL Trefudlze
would result to t:?e Em+oyer L,v t5.e crovz.sion cf t?e
particulars as reTJested in the cF:c-xtances.
i
facts u?on which the zm~loyer intends to rely,
unless that witness is t:ne only witness. Consesaentl;Yf
the provision of this statement does not in all cases,
nor did it in thiscase, 40 bevond t:?e miriimum necessaz'l _
to give the party requiring particulars to nrenare its
case.
10. An Order for particulars in this,case will avoid the
possibility of the necessity for a further adjourn-
ment in the event that one of the parties is "scr?rised"
by the subsequent evidence of the other.
Il. While it is possible that particulars may have been
furnished du-G iAng the grievance process, the arbitrator
cannot assume that the disclosures and admissions
given during this process are agreed u:ccn facts.
Consequently where a 3arty requests particulars, it
. , 1s Incorrect to assume that the disclosures made
durino the grievance Trocess constitute adequate
particulars. T&en a "likelihood" of disclosure dces
not entail the likelihood that what was disclosed
were indeed tfie material facts, actions ax? cmissi2n5
upon which the Employer intends to rely at arbitratLon.
Consequently, _ I :iould have allcwed 't::e mctln o-1 z.e
-;-