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HomeMy WebLinkAbout1997-0383.McQueen.98-10-05ONTARKI CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD EMPLOY& DE LA COURONNE DE L’ONTARK) COMMISSION DE RikGLEMENT DES GRIEFS 180 DUNDAS STREET WEST; SUITE 600, TORONTO ON M5G IZB 180, RUE DUNDAS OUES 7; BUREAU 600, TORONTO (OhJ h&G iZ8 TELEPHONE/7iLiPHONE : (416) 326-7388 FACSIMIiE/T~tiCOPIE : (416) 326-1396 GSB # 0383197, 0779197, 0780197, 1672I97 OPSEU 971)619-623,97C425,97C426,97HOS9 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Archie McQueen) - and - Grievor The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) Employer BEFORE FOR TEIE UNION .- FOR THE EMPLOYER Felicity D. Briggs Nelson Roland Counsel Jane Hooey Counsel, Legal Services Branch Management Board Secretariat Vice-Chair HEARING September 16, 1998 2 The grievor, Mr. Archie McQueen, was a corrections officer for approximately twenty years prior to his discharge. On June 20, 1997, he filed a grievance stating that he had been dismissed without just cause. By way of remedy, he asked to be reinstated with full compensation and benefits. a At the first day of hearing, counsel for the parties agreed to give this Board jurisdiction over three related grievances. What is now the second grievance was also filed June 20, 1997, and alleged that the Mr. McQueen had “been found guilty by the Toronto Jail before a fair trail in court”. The third grievance, dated March 16, 1997, alleged that the grievor had been unjustly suspended for five days and the final grievance alleged that the grievor was denied full disclosure of an earlier Independent Investigation Unit (hereinafter referred to as “IIU”) report. Counsel for the Employer, Ms. Hooey, gave a thorough opening statement wherein it was said that the grievor was discharged for threatening co-workers. The suspension that had been imposed earlier in 1997 was for an earlier similar infraction. The result, from the Employer’s point of view, was that the grievor has irrevocably destroyed the employment relationship because neither it nor the grievor’s co-workers can rely on him. It was contended that in the uncertain correctional environment, such a fundamental lack of trust is to the detriment of all and cannot be tolerated. In the fall of 1996, a complaint was filed by a co-worker alleging that the grievor has i harassed her due to her gender. In accordance with usual practice, the Independent Investigation Unit undertook an investigation. Although this incident is separate, it was the position of the Employer that it was interrelated to the later suspension and discharge because of various connections between earlier behavior and the threats. fr -. ‘t,;. The incident for which the grievor was discharged also gave rise to criminaI charges. It was explained by Ms. Hooey that the Employer has a policy which sets out circumstances that require the Employer to notify the police. In its view, the grievor’s behavior obliged the Employer to notify the police to attend at the institution. Charges were laid and . ultimately, the grievor was acquitted after a two day trial. However, irrespective of whether the grievor’s behavior was criminal, it was the Employer’s position that it was grossly inappropriate and constitutes just cause for termination. Ms. Hooey informed the Board that employees who complained about the grievor have approached the Employer and stated that they believe the grievor is attempting to intimidate them in an effort to discourage their participation in this procedure. Some are experiencing menacing phone calls they believe are from Mr. McQueen. Mr. Jarvis, the officer who was involved in the incident that resulted in criminal charges, has received notice that the grievor has laid charges of public mischief in response. The Employer is concerned that some of the grievor’s actions have had precisely the chilling affect upon potential witnesses that he had hoped for. The Employer further alleged that the grievor’s threatening behavior continued beyond his termination. Ms. Hooey stated that the Employer believes that the grievor drives past the jail and makes obscene gestures and shouts obscenities. This type of activity has reinforced-the Employer in its view that the grievances must be dismissed. Mr. Roland, for the Union, gave a brief opening statement wherein it was stated that all of the discipline meted out to the grievor was without just cause. The Employer bears the onus to prove, with clear and cogent evidence that there is just cause for dismissal. The Union reserved its right to provide a fuller opening statement. However, Mr. Roland made clear that it was the Union’s view that the grievor did not threaten or intimidate Ms. 4 Moore, Mr. Riel or Mr. Jarvis. The grievor has been a loyal and faithful employee for twenty years with numerous commendations on his file. Indeed, the grievor had an almost perfect attendance record and he sometimes even failed to take earned vacation. He always took pride in his work of serving the Ministry to the point that it was the major element in his life. Mr. McQueen is a man who has suffered sadness and embarrassment in his life. He has been viewed as an eccentric by some of his co-workers at the Toronto jail. However, the Union will provide evidence of co-workers who trust the grievor and would work with him again. The Union suggested the Board not lose sight of the fact that the grievor was acquitted of the very charge that brought about his discharge. Initially, the parties had two matters in dispute between them with respect to the matter of disclosure. The first was whether the Employer would provide the IIU report with all background notes and information to the Union. The Employer gave a copy of the report to the Union on the morning of the hearing but was still reluctant to provide the background information and notes because it was afraid that the grievor would disseminate that information with others and would harass those employees who co- operated with the investigation. In response to this concern, the grievor, through Mr. Roland, gave the Board an undertaking that he would not approach any of the people named in the IIU report. It was made clear that neither the Union nor the grievor were acknowledging that such an undertaking is necessary. However, in an effort to assist with the smooth operation of this hearing, the undertaking was provided. Accordingly, on that ,. basis, the Employer is ordered to provide the information requested by the Union in this regard. The second and more contentious issue of disclosure between the parties is a request by the Union for the Employer to provide it with the complete personnel files of the three employees who have complained against the grievor. The Union asks this Board to order 5 the Employer to provide the complete personnel file for Ms. Moore, Mr. Jarvis and Mr. Riel. It was the Union’s submission that the files are relevant to understand the background of the people who have complained about the grievor. Perhaps the Union can learn who else those employees have complained against or what their motivation was in . their complaints against the grievor. Mr. Roland stated that the Union knew that Ms. Moore and Mr. Jarvis had requested transfers to other institutions prior to their complaints. During the course of the scenario that the Board will hear about, both received their transfer requests. It was the Union’s view that those transfers, which in each case were to institutions closer to the officer’s homes, were not mere co-incidence. It was recognized that not everything on the personnel files will be relevant to these proceedings. However, the Union has a right to look at the entire history of those employees. It has a right to challenge witnesses and to obtain full information about those witnesses in order to prepare a full defense. The Employer strenuously objected to the request for the personnel files of the three employees. The Board was asked to look carefully at the Union’s primary argument in this regard. It was said that there “might” be information in thos; files which would be of use to the Union. Ms. Hooey suggested that this is a fishing expedition of the highest order. Ms. Hooey told the Board that the Union had specifically asked the Employer for information regarding requests for transfer made by the three employees and that information was provided. However, the Employer urged the Board to deny Union’s broader and non partic&..rized request. According to the jurisprudence, in order for information to be found appropriate for disclosure, it must meet certain criteria. Firstly, it I’ i..- must be arguably relevant. The Union failed to provide any rationale to the Board as to 6 why the contents of the personnel files might be relevant except that there “might” be something useful to the grievor’s defense. Secondly, the requested information must be particularized so as to avoid later disputes. There was no particularization in this regard put forward by the Union. Thirdly, the Board must be satisfied that the request is not a fishing expedition and finally, there must be a nexus between the information requested and the matter at issue between the parties. In the instant case, there has been no nexus established between the personnel files of the three employees and the grievor’s discharge. While there might be some vague allegation of a conspiracy in the work place against the grievor, that theory is not sufficient for this Board uphold the Union’s request. The Union will have an opportunity to cross-examine the Employer’s witnesses. In that usual forum, there will be ample opportunity to have motivation, if any, revealed. Put frankly, Ms. Hooey submitted that the contents of the personnel files of the three employees are none of grievor’s or the Union’s business. Further, the Employer argued that the three employees must view this request as yet another attempt to harass and intimidate. They would be significantly prejudiced if this Board made such an order. Indeed, it was suggested by Ms. Hooey that, in the event that I am even giving the Union’s request serious consideration, I should give each of the employees third party notice and provide an opportunity to make representations in this regard. In the alternative, the Employer offered to go through the files and provide any relevant information. If that is not acceptable to the Union, Ms. Hooey suggested that the Board would review the files and determine what, if anything should be given to the grievor based on relevance. \ In reply, the Union stated that it would be willing to give the same type of undertaking as 7 set out above regarding any information it receives resulting from this request. Responding to the criteria required for disclosure of documents, it was suggested that all of the information that has been requested has to do with the very people who made complaints against the grievor which led to his discharge. The Employer, by it own . admission, relied on those complaints. That reliance has made their personnel files relevant because of the relationship between the grievor and the complainants and because of the negative affect in the working conditions arising from the complainant’s allegations. Mr. Roland stated that the personnel files contain documents regarding the employment relationship between the employees and the Employer. Accordingly, those documents are relevant to the matter at hand. The Union is unsure at this point as to whether it will ultimately argue that a conspiracy existed. However, it should receive the employment records of the complainants to test the evidence that each will give in chief. The Union will probe through cross-examination the working relationships to find whether the complaints were justified. In order to do that properly, the Union has to be able to look at the employment relationship of the complainants. The Union will attempt to cast doubt on the validity of the complaints made and it needs the personnel records to do so. Regarding the issue of lack of particularity, it was argued that in the absence of having seen the file, detail and specificity is not possible. But denying the Union access to the files because it does not have “X-Ray vision” would be unfair to the grievor and his ability to prepare his case. It is a vicious circle to find that because the Union cannot state the title of documents it does not get them. In any event, there is sufficient particularity. The Union wants the personnel files. Mr. Roland agreed that he had asked for some particular documents and had received them. However, he submitted that there are other things in the files that the Union will only kno& it wants when it sees the file. The Union 8 needs a “preliminary peek” at the files to determine what it needs. Mr. Roland asserted that the Union’s request did not constitute a “fishing expedition”. He suggested that phrase is used wherever a party does not want to disclose particular documents. Further, the nexus is obvious. At issue is the workplace relationship between the grievor and the complainants. Accordingly, the employment records of the complainants are relevant. The Union disagreed with the Employer’s request for this Board to provide third party notice to the employees. It was submitted that this is not a case where those individuals have a direct employment interest in the matter at hand. Additionally, they are not a party to the dispute and should not be granted third party status. Further, the Union took issue with the Employer’s alternative argument regarding the vetting of the files. DECISION The Board was provided with two earlier decisions. In Re OPSEU (Kumor) and Ministry of Solicitor General and Correctional Services, GSB No. 1698/96 (Finley) and Re OPSEU (Tefoglou) and Ministry of Solicitor General and Correctional Services GSB No 1378/97 et al (Abramsky) there was a Union request for disclosure of the grievor’s entire personnel file. In both instances, the grievors had been suspended and the Union successfully argued that it should have access to the grievor’s complete record because the “discipline decision maker” might have been influenced by the contents of the file and the grievor should have a right to make reference to the grievor total file in order to make its mitigation argument. However, in each of those decisions, the Vice Chairs made clear that disclosure of the entire personnel file “of the grievor” would be determined based on the facts at hand. Reference was made in both to an earlier 9 9 arbitration award regarding this issue that is often cited, Re West Park Hospital & arbitration award regarding this issue that is often cited, Re West Park Hospital & Ontario Nurses’ Association (1993), 37 L.A.C. (4th) 160 (Knopf) and to the appropriate Ontario Nurses’ Association (1993), 37 L.A.C. (4th) 160 (Knopf) and to the appropriate criteria to consider when granting a request for the disclosure of documents. criteria to consider when granting a request for the disclosure of documents. I read the two GSB decisions with interest but have found them to be of minimal assistance because each dealt with the personnel file of a grievor who had been disciplined. It was argued that in order to ascertain whether there was an appropriate review of the entire file in an effort to mitigate the penalty, the file had to be disclosed. The facts in this case are substantially different. The Union is not requesting the grievor’s personnel file. It is asking for the disclosure of the entire personnel file of employees who were involved in incidents with the grievor. In her decision, Vice Chair Finley stated at page four that each of the articulated criteria in West Park (supra) was met. Taking that the now well established criteria set out in West Park (supra) and applying it to the matter at hand, I have no hesitation in denying the Union’s request. The Union failed to convince me that the documents are even arguably relevant. Indeed, Mr. Roland did not even know what documents he wanted disclosed. Basically, the Union’s argument is that because the complainants are co-workers who were involved in the incidents giving rise to the grievor’s discipline and will give evidence in this case, all of the details of their personnel records are arguably relevant and therefore appropriate for disclosure. I think not. i In my view, the Union’s request was far from particularized. There was no dispute between counsel that there had been one particular request regarding transfer requests made. Those documents were provided to the Union. Given the Union’s theory of the case, to the extent it was set out in opening statement, it was appropriate that the Employer provided that information, in my view. However, in the circumstances of this 10 case, I am of the view that a request for the entire personnel file of a complaint and potential witness is, in and of itself, insufficiently particularized. It was submitted by the Union that it wanted to the files to ascertain if there was evidence . of “potential motivation” on the part of the three complainants. To ask for disclosure of documents because “there might be something” therein is tantamount to a fishing expedition, in my view. I have not been persuaded as a preliminary matter that there is any nexus between the complainant’s personnel record and the matters at issue and therefore I find that they are not appropriate for disclosure. This is not a case where the Union is asking for administrative records or policy documents. There might be documents in those records that are very personal and confidential and, more importantly, have no relationship whatsoever to the matter at hand. It is not that the fact that the requested files possibly contain confidential and private issues that had led to my decision. The request is denied because the criteria appropriate for disclosure has not been met. I understand that the matters at hand are of the utmost importance to the grievor. The Union will have a full and complete opportunity to cross-examine the Employer’s witnesses. If there are relevant documents that are requested during the course of the hearing I will entertain those requests and determine the matter at the appropriate time. For those reasons, I am denying the Union’s preliminary request for the personnel records of the three complainants. However, the Employer is ordered to provide the background information and notes from the IIU report having received the grievor’s undertaking as set out earlier in this decision. 11 Dated this 5th day of October, 1998 in Toronto. Felicity D. Briggs /’ Vice Chair *