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HomeMy WebLinkAbout1997-0383.McQueen.99-12-07 DecisionONTARIOEMPLOYÉS DE LA COURONNE CROWN EMPLOYEESDE L’ONTARIO GRIEVANCECOMMISSION DE SETTLEMENTRÈGLEMENT BOARDDES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE,(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396 GSB # 0383/97, 0779/97, 0780/97, 1672/97 OPSEU # 97D619-23, 97C426, 97C425, 97H089 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McQueen) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services) Employer BEFOREFelicity D. BriggsVice Chair FOR THE Nick Coleman GRIEVORCounsel Gowling Strathy & Henderson Barristers & Solicitors FOR THELucy Siraco EMPLOYERCounsel, Legal Services Branch Management Board Secretariat HEARING May 6, 1999 June 14, 25 1999 November 10, 1999 2 The grievor, Mr. Archie McQueen, was a corrections officer for approximately twenty years prior to his discharge. The letter of discharge dated June 20, 1997, stated that “on April 23, 1997 and May 13, 1997 you directed threats towards a co- worker”. The grievor had previously been suspended for five days for “directing threats against a co-worker on February 10, 1997”. Mr. McQueen filed a number of grievances including grievances stating that he had been suspended and dismissed without just cause. There have been two preliminary decisions issued to date in this matter. At the first day of hearing the Employer informed the Board that neither the Independent Investigation Unit Report nor any of the accompanying documents arising from the report had been disclosed to the Union. It its submission, the Employer told the Board that the grievor’s former co-workers were frightened for their safety. It was stated in that decision, dated September 28, 1998, at page 2: 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. During the first day of hearing the Employer told the Board that it was concerned the grievor would contact some of his former co-workers once the documents were disclosed. The Union and the grievor took issue with that concern, but in an effort to move along the proceedings, the grievor gave an undertaking that no such contact would occur. The first decision orders the Employer to disclose the information. The award also denied a Union request for disclosure of the complete personnel records of those individuals who accused the grievor of threatening behavior. 3 The second day of hearing brought about a further preliminary matter regarding introduction of certain evidence. That issue was disposed of in a decision dated April 26, 1999. At the most recent day of hearing the Employer raised a further preliminary matter to be dealt with prior to having the hearing proceed on its merits. The Employer urged this Board to impose certain restrictions on the information it disclosed to the Union resulting from the first preliminary decision. The restrictions the Employer asked this Board to impose were as follows: 1. Except as expressly permitted by the Board’s order, the documents are to be maintained in strict confidence and shall not be disseminated by the Union, its representatives or the grievor. 2. The grievor’s earlier undertaking not to approach any of the individuals involved in the investigation remains in effect. 3. The documents are to be used strictly and only for the purposes of the hearing (“these proceedings”) before the Board and not for any other present or future collateral or ulterior purpose. Without limiting the generality of the foregoing, “collateral or ulterior” purpose means any purpose other than these proceedings. 4. To ensure their physical security, the documents shall be kept in the Union Counsel’s possession for the duration of these proceedings. 5. The documents are not to be copied or reproduced by the Union, its representatives or the grievor, except if required as exhibits in these proceedings. If reproduction is required for the purpose of consultation with a third party, Union Counsel shall advise that party of the Board’s order and the party will be bound by its terms. 6. Upon completion of this proceeding, all of the documents shall be promptly returned to the Employer Ms. Siraco, for the Employer, suggested that given the unusual facts in this case, its request was entirely reasonable. Certain witnesses were told that their evidence would not become public and an order such as that requested would accomplish that end. To deny the Employer’s request could potentially have an undue chilling affect on the witnesses. It was acknowledged that the request was made in the absence of any misuse of evidence. However, such proactive measured are unfortunately 4 appropriate in the instant matter. It should not be forgotten that the grievor was discharged for threatening co-workers. The fear of those individuals that was referred to on the first day of hearing has not abated. The Employer relied upon Re Jaddco Anderson Ltd. 1996 O.L.R.D. No. 1338 ; Re Shaw-Almex Industries Limited (April 12, 1984), Ontario Labour Relations Board 1649-83-U; Re The Crown in Right of Ontario (Ministry of Corrections) and Ontario Public Service Employees Union (Basso) (May 16, 1991), unreported (Kaplan); and Re The Crown in Right of Ontario (Ministry of Culture and Communications) and Ontario Public Service Employees Union (Quinn) (March 25, 1990) unreported (Kaplan). Mr. Coleman, for the Union, strenuously opposed what he referred to as the Employer’s ill conceived request. The matter of disclosure has been previously argued and disposed of without restriction. It is not now appropriate to seek further limitations. The grievor was not disciplined for sexual misconduct. This distinction is relevant given the jurisprudence proffered by the Employer. Furthermore, there are no commercially sensitive documents as considered in the case law arising from the Ontario Labour Relations Board. The Union submitted that the grievor’s undertaking given the first day of hearing remains intact. It was acknowledged it might be that the implied undertaking rule as discussed in Re Shaw-Almex (supra) would also apply to the instant proceeding. Any breaches of that rule, if any, can be appropriately redressed. The Union and its counsel are aware of proper treatment of disclosed documents. For this Board to assume that the grievor or the Union will treat documents inappropriately would be wrong and fundamentally unfair to the grievor. Further, an order such as that requested by the Employer would significantly restrict the Union’s ability to represent the grievor. 5 In reply, Ms. Siraco acknowledged that the request was not meant to address what has happened in the past but to prevent any misuse of the information in the future. Further, it was submitted that this order would protect some of the Employer’s witnesses from co-worker reprisals resulting from having complained about the grievor in the first instance. DECISION After consideration I am not prepared to order the conditions sought by the Employer at this time. I have no evidence that the grievor or the Union have treated disclosed documents in an improper fashion or have any intention of so doing. However, I do know that the grievor gave an undertaking on the first day of hearing to refrain from contact with any people in the workplace and, to my knowledge, he has not breached his undertaking or acted improperly in this regard. In Re Quinn (supra), the main issue for the Board to determine was whether to order certain documents be disclosed to the Union. In that case, as can be seen at page 7, counsel for the parties agreed that “in the event of disclosure the notes in question would be retained by union counsel and not circulated among potential witnesses”. In his later decision Re Basso (supra), Vice Chair Kaplan was dealing with discipline imposed for alleged sexual harassment. The preliminary decision orders disclosure of certain documents and further ordered counsel for the Union to refrain from making copies of the documents and to use them solely for the purpose of preparing that case. However, it is not clear what restrictions were sought and what, if anything, the Union argued about restrictions. The order requested by the Employer is very restrictive and it was the Union’s view that it could have an affect on its ability to prepare the grievor’s case. I understand that concern. It might be that in some circumstances such an order would be necessary. However, there is nothing before me that leads me to think such 6 limitations are needed in the instant matter. Indeed, counsel for the Employer acknowledged that the order was requested given the potential for misuse of the disclosed information not because of past violations of the proper use of documents. Counsel for the Union submitted to this Board that the disclosed documents will be treated with the proper respect. I accept that assurance. For those reasons, at this time I am not prepared to grant the Employer’s request. The hearing will continue on the merits in January of 2000. Dated in Toronto this 7th day of December, 1999. Felicity D. Briggs Vice Chair