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HomeMy WebLinkAbout1993-1948.O'Brien.95-02-14. . ; THE 'CROWN EMPLOY&S COLLECTIVE BARC?A&#IG ACT :. ,. Before 1' '-,. '. _. ; THE GRIEV&CE SETTLEMENT EiOW 1: ,' 180 DbNDAS STREET WES’I; itiITE 2100, TORONTd ON M5G lZ8 ‘- 180, RUE LXJNDAS OUEST; BlJiiEAU 2100, TORONTO (ON) MSG lZ8’ ~ELEPHO~~EIT&L~PI~ONE : (416) 326 - 1388 : FACSIMILEITiL~COPIE : (416) 326~ 7396 . : . . . ..- . . ‘I . : .’ ,’ ., . . . : GSB#'l948/93, 179194, 236/94 OPSEU# 93F?55, 9.+A574, 94A608. _ .b. ",. Iti THE-.MATTtiR dF ti'ARBITtiTION : : .rinder, . BETWE'EN. . ?PSEU (O'Brien) ._ ,. ,. .' . . .,.;. i ‘, Grievor ... i and - : ,: '. . . .' The Crown in'Right of Ont&io '. ' -' I I (Ministry of Cokr&ction$l Services) I I. 'i. mpioyer I I. ;' BEFORE, 'ii. Finley, y Vice-&i*p.erson ..' _, : _- +OR.THE .Y' M. Cornish GRIEVOR' 'Counsel Cavklluzzo Hayes Shilton. "'. : . . McIntyre & Cornish' Barristers & Solicitors : ..-' : FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board.Secretariat HEARING February 6, 1995 ', ,. . ’ L : G.S.B. # 1948193 INTERIM DECISION The parties are requesting the production of certain documenti. The Grievance Settlement Board has the authority to order the production of documents, under the Crown Emplovees Collective Barpaining: Act by reference to the Labour Relationk Act, s. 45 (8.1): 45. - (8.1) has the full powers of a board of arbitration and has the following powers: 1. To require any party to ‘furnish particulars before or ; during a hearing; ” 2. To require any party to produce documents or things that may be relevant to the matter and to do so before or during the hearing; In ljne with the jurisprudence which has developed in the area of production of documents, the Board adopts ‘arguable relevance’ as the appropriate test, while recognizing that the issue of relevance and adn$ssibility may be argued if and when the documents in question are presented ,iri evidence at the hearing on the merits. Mary Cornish, Counsel for the Union, is requesting production of the following items: (a> “a further WDHP investigative report dated April, 1994”; (b)- “any other documentation or reports which the Ministry or Management Board Secretariat:, . . has concerning Ms. O’Brien’s complaints under the WDHP policy eithermade directly by her ,, or at the instgation of the Ministry itself (apart from those.already produced in this hearing); ,. I’ 03 any documents which set out what’ steps the Ministry has taken’ to implement the : .: recommendations of the Bell Cairn Report. .’ * , . , i ,. i’. The parties have agreed to the production of (a) and (b),and to the following terms. of confidentiality with respect to their production: , . . .,, . L :’ _ I (4 that the confidentjality of these documents be respected;, / . (b) . . that access to them be.on a “need-to-know basis only”; 9 : ‘, . . cc> that they not be copied except for the purposes of the Grievance Settlement Board and for no.other purpose; ,. ” ‘.. ‘_ (4 , that .the documents be returned to the Employer following. the : completion of the arbitration. . ‘. .i Stephen Patterson, for the Employer, is opposing the producti6n of,the Bell Cairn follow-up on the L . i basis that the grikvantie of Ms. O!Brien is an individual grievance regarding a:particular work site, _’ - 1.. and he views this request as an attempt on the Union’s part to broaden the individual grievance into . a union grievance. The Bell Cairn report (which has already been produced but not admitted) dealt _- . .with a specific location and should be treated as irrelevant’.to this proceeding. He is further concerned that it- is so clearly similar fact ‘evidence with all, the ..inherent risks that involves, particularly the risk’of a conclusion being drawn based on a prior finding at another institution. : ’ ..’ Ms. Comish submitted that the Employer is responsible for providing the Grievor with a non- _- .’ discriminatory’environ~ment. Hpwever,anumber of discriminatory events which happened to the . . Grievor are the result of a culture ,which ,has been permitted to exist within the Ministry of Corrections and the report is a confirmation of the problems at the Windsor Jail and of the fact that the Employer had knowledge of such problems. The Union will be arguing that the Ministry failed td take steps to effect change at the Windsor Jail and to that extent 2. :’ the government-wide ./ : _’ ’ \ (. i _’ n policies are relevant. Further, the Report, which was commissioned by the Government, notes the reluctance of individuals who believe they have been harassed to complain and the Employer may argue that it was unaware ofhow the WDHP was working. Ms. Comish submitted as well that the Bell Cairn report and the Draft Code of Conduct had both been circulated at the Institution. The Board- is ordering the production of any policies, -guidelines or directives pertaining to all Institutions, all Institutions in the Western Region, or specifically to the Windsor Jail, which were in place as a result of the Bell Cairn report, during the relevant period. (1) (2) (3) (4) (3 (6) (7) (8) (9) Mr. Patterson has requested production of the items listed below: Any and all notes, records, memoranda etc. made by the grievor during the course of her employment with the Ministry or made during the course of her hiring by the Ministry; Any and all calendars, schedules, day books, diaries or other records which the employee maintained during the course of the employee’s employment with the Ministry. Any and all Medical Reports upon which the Union intends to rely in the course of the hearirik Any and all reports of a non-medical nature arising out of the counselling of the employee by non-medical staff; The identity of all the various babysitters referred to by the grievor in the course of her evidence and the most recent address or telephone number which the grievor may have for these individuals; Any .and all correspondence, contracts, written agreements or records of communication between the employee and the babysitters identified above; The employee’s financial records for the periods in which she has claimed that she has. been financially disadvantaged by the Ministry’s actions. Specifically, but not limited to the. employee’s bank records for all accounts and Income Tax Returns; The employee’s telephone’records for the summer and fall of 1993 in which she alleges that - she attempted to contact, and contacted, the Deputy Minister’s Office and the IKJ Office; All records arising out of the sale or expropriation of the employee’s Winds& residence and 3 I ,>. c -.. i’ j .- . . . . -.~ z ’ 4. ‘. c. -i. 1 .: :. . . .o ;, : : .1 . the purchase of a residence in the [***I area: Such records should iticluder but n6 be’ limit& to, offers to purchase, acceptances, agreements of purchase and sale, and tit& do&me& in 1 both properties. ‘.. _, : , : .- I : .. : : (10) Any‘ and. all cprrespondence, notes, tiemoranha, records. ,arising- OI.? of the social -. .., : : : engageme&s,,which the employee alleges.were cancelled due to the acti&rof t@ Ministry. ,. : .’ . Ms. Comish objected to the degree of,invasivefiess of the Employer’s request in& the private, .- and personal life of the Grievor. .She likened it to the b&ad and deep exposure of the persqnal life of a victim ocsexual assault which has been justified by the necessity to-protect the rights of the : , accused. She also made the point that her.client found it difficult to place.her tn.&, at-thi’s point,in . .I : t&e, in,the Employer. Mr:Patters& argued that the situation at hand was nbt analagous to that of .. .,+ . < ; ; -’ the production-6f evidenci in the trial df an.individual.iharged with sexual assault, wherein there , . are the rights of the .a&used and the&hts to privacy bf the complainarit to de&Xected. . .. , ‘. 4 Ha&g he&&d considered the submissions of Counsel in the ddfitext of arguable ‘. ‘, 2, .” relevance, it is .the intention of the Board to order most of the evidence rec$iest&d by Mr. Patterson butin such a manner ihat the invasion’ of the Grievor’s personal life-is limited akd her privacy is not . . unnecessarily invaded. ‘. : Each request is.dea’it with below and the Board orders production as foll6ws. I :: ., : ,_’ * (I> Any an,d all work-related-not&, records, memoranda etc. -made by the grievor during the course of.her employment with the Ministry or @adi during the cc&e of her hiring by’the Mi&stryi _ ?’ ’ . . I ‘. ; . . :. * ; :..c _’ . . .. I . , (2) ... Any and, all calendars, schedules, day books, diaries pr other records,.which the emplofee ’ :” ” maintained during Ihe course of the employee’s employment with th$:Ministry. This does not in&de anv diaries of the Grievor’s nersonal thouehts. or diaries &hich might have beeq : written as oart of a theraDeutic Dr&ess; : ! (3) Any and all m&Iic@ reports upon which the Union intends, to. rely in the course of the hearing; (4) ,. Any and all reports of a non-medical nature arising out of the counsellitig of the employee (5) (6) (7) (8) (9) (10) by non-medical staff on which the Union intends to rely in the course of the hearing. , A list of all the various babysitters referred to by the grievor in the course of her evidence and the most recent address or telephone. number which the grievor may have for these individuals: Any’ and all correspondence, contracts, written agreements or records of communication between the employee and the babysitters identified, with the exception of details about the children; A statement of the emnloyee’s moss income from all sources and income after tax. sutinorted bv documentation available for Counsel’s scrutiny. and satisfactory to Counsel. for the vears in which she claims that she has been financiallv disadvantaged bv the actions of the Emnloyer. Documentary proof of the emnloyee’s telephone calls in the summer and fall of 1993 when : she alleges she attempted to contact or contacted the Deputy Minister’s Office and the IIU Office; Documentary proof. satisfactorv to Counsel. of the Grievor’s eauitv in the nronertv in Windsor and in her new residence as well as nroof of the sale and Purchase m-ices and related exnenses; Any and all correspondence, notes memoranda, records arising out of the social engagements which the employee .alleges were cancelled due to the actions of the Ministry. Dated at Kingston 1 . This 14th day of February, 1995 5