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HomeMy WebLinkAbout2013-0904.Cusack.14-07-29 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-0904, 2013-0905, 2013-0906, 2013-1183 UNION#2013-0616-0013, 2013-0616-0014, 2013-0616-0015, 2013-0616-0021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cusack) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Heather McIvor Ministry of Government Services Legal Services Branch Counsel HEARING July 16, 2014 - 2 - Decision [1] I have four grievances before me dated April 16, 2013, filed by Ms. B. Cusack. The allegations raised by the grievances are essentially that the Employer engaged in conduct towards Ms. Cusack which constitutes harassment, discrimination, bullying and unfair treatment. These allegations in part form the basis of the Union’s claim that Ms. Cusack’s resignation on April 12, 2013, was not voluntary and that she should be reinstated. The Employer denies these allegations and claims that Ms. Cusack did voluntarily resign her employment on April 12, 2013. In the alternative, the Employer takes the position that it had just cause to terminate Ms. Cusack’s employment. [2] The parties disagree on the procedure to be used to hear these grievances. They also disagree about whether the Union is entitled to the production of certain documents. Counsel made submissions on these matters at the hearing on July 16, 2014. The parties were able to agree on some of the production issues by the completion of the hearing. This decision will address the procedural and unresolved production issues and will reflect the agreement of the parties on some of the production issues. [3] The factual context for addressing the procedural and production issues is as follows. Up until April 12, 2013, Ms. Cusack was employed as a Registered Nurse (“RN”) at the North Bay Jail (“NBJ”). She commenced her employment at that institution in December of 2011. Following a CISU investigation into the suicide of an inmate at the NBJ and an allegation meeting, the Employer had intended to terminate Ms. Cusack’s employment at the discipline meeting scheduled for April 12, 2013. The - 3 - Employer had prepared a termination letter dated April 12, 2013, in advance of the meeting, which set out the grounds it relied upon for the termination and it had planned on giving this letter to Ms. Cusack at the meeting. At the start of the discipline meeting on April 12, 2013, a letter of resignation signed by Ms. Cusack was provided to the Employer. The Employer elected not to carry through with her termination once Ms. Cusack tendered her resignation, thereby avoiding the necessity of reporting Ms. Cusack to the College of Nurses. By letter dated April 12, 2013, Superintendent Lucier acknowledged receipt of Ms. Cusack’s resignation letter and referenced the outstanding discipline as follows: It is noted that the outstanding discipline stemming from the April 5, 2013 allegation meeting, in addition to two other separate matters that were recently brought to my attention, remain on file. However, these matters will not proceed at this time given that you have resigned from employment at the North Bay Jail. Please be aware that if you are re-employed with the Employer in the future, these outstanding matters may be dealt with at that time. [4] The focus of the statement of particulars supplied by the Union in relation to Ms. Cusack’s allegations is on the conduct of Nurse Manager Ms. A. Carruthers. The Union’s particulars indicate that Ms. Carruthers commenced her employment at the NBJ approximately in late July of 2012. Ms. Cusack contends that her working conditions deteriorated and the circumstances leading to her forced resignation began with the hiring of Ms. Carruthers. [5] I will first address the procedural issues. The Employer proposes that this proceeding deal with the issues raised by Ms. Cusack’s grievances, including whether her resignation was voluntary, as well as whether the Employer had just cause to terminate Ms. Cusack’s employment. It proposes that the issues be heard in two stages. The issues - 4 - raised by Ms. Cusack’s grievances and whether her resignation was voluntary would be heard first and only after they were decided, and if necessary, would the just cause issue be heard. Employer counsel submitted that such an approach is the most efficient way to proceed and one which appropriately balances the interests of the parties. In support of adopting this approach Employer counsel referred me to the following decision: Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1979), 22 L.A.C. (2d) 51 (Brent); Re Canadian Liquid Air Ltd. and E.C.W.U., Loc. 777 (1993), 35 L.A.C. (4th) 72 (Hillier); and, OPSEU (Esser et al.) and Ministry of Community Safety and Correctional Services (2013), GSB No.2011-3658 et al. (Watters). [6] The Union first takes the position that this proceeding should not inquire at all into whether the Employer had just cause to terminate Ms. Cusack’s employment. It takes this position for a number of reasons. Firstly, it asserts that the Employer’s suggested approach raises a number of practical concerns since the issues have a different focus and onus, which in turn determines who will proceed to call evidence first. Secondly, the Union asserts that the just cause issue is premature at this stage because the Employer has not exercised its power under section 34 of the Public Service of Ontario Act to dismiss Ms. Cusack and because there is no grievance challenging her termination. Finally, the Union claims that the Employer is estopped from dealing with the just cause issue having regard to the representation Superintendent Lucier made in her April 12, 2013, letter acknowledging Ms. Cusack’s resignation and referencing when the outstanding discipline matters may be addressed. Union counsel relied on the following decisions: Re Beachvilime Ltd. and E.C.W.U., Loc. 3264 (1989), 7 L.A.C. (4th) 409 - 5 - (Hinnegan); OPSEU (Nield) and Ministry of Labour (1996), GSB No 1471/96 (Roberts); and, Ontario (Ministry of Labour) v. Ontario (Grievance Settlement Board), [1997] O.J. No. 427 (Ont. Div.Ct.) [7] If I were inclined to adopt the procedure proposed by the Employer, the Union argued that the Employer should proceed first on all the issues and that I direct the Employer to provide full particulars on the just cause issue. [8] After reviewing the submissions and the arbitral authorities, I am satisfied that it is appropriate to address the just cause issue in this proceeding. As both parties appreciate, there will be a significant overlap in the evidence on the issues the Union intends to raise and on the just cause issue. The facts clearly indicate that the Employer would have terminated Ms. Cusack’s employment on April 12, 2013, but for her resignation. The general approach arbitrators take in these circumstances is to permit the Employer to raise the just cause issue in the alternative should the Union succeed in establishing that the resignation was not voluntary. I do not see any sound reason for not following this approach in this case. By indicating that it wishes to deal with the just cause issue in the alternative, the Employer is in effect relying on its power to dismiss Ms. Cusack, which in turn creates a difference between the parties for resolution at arbitration. I am also satisfied that Superintendent Lucier did not make a representation in her letter of April 12, 2013, which precludes the Employer from relying on the just cause issue in the alternative in this proceeding. I read her letter as simply indicating to Ms. Cusack that the disciplinary matters will remain on file and will be addressed in the future if necessary. I do agree with the Employer’s view that Ms. Cusack’s subsequent - 6 - contention that her resignation was not voluntary and the request for her reinstatement makes it necessary now to address the disciplinary issues and to do so in this proceeding. [9] In dealing with the just cause issue as a part of this proceeding, I am also satisfied that the Employer’s proposal on procedure should be adopted. Its proposal represents the most efficient way to proceed in the circumstances. The first stage of the proceeding will address the Union’s allegations and whether Ms. Cusack’s resignation was voluntary. Since the focus of this stage is not on the just cause issue, the Union will call its evidence first. If it is determined that Ms. Cusak’s resignation was not voluntary, then the proceeding will resume to deal with the just cause issue. Since the focus of the evidence at the second stage will relate specifically to whether the Employer had just cause to terminate Ms. Cusack’s employment, the Employer will call its evidence first at that stage. This process will not prejudice either party. I agree with the submission of Employer counsel that it would be premature to direct the Employer to provide full particulars on the just cause issue now when it may not be necessary to address that issue in this proceeding. [10] I turn now to the outstanding production issues. The Union requests the Employer to produce the following documents for the period of time Ms. Cusack was employed at the NBJ: - copies of the institution’s nursing department staff schedules, and, - copies of any records outlining the overtime hours worked by nurses. - 7 - [11] In making their submissions on whether these documents were arguably relevant, counsel referred me to the following decisions: Ontario Liquor Boards Employees’ Union v. Ontario (Liquor Control Board) (Koonings Grievance), [2006] O.G.S.B.A. No. 33 (Gray); McKay v. Toronto Police Services Board, [2009] O.H.R.T.D. No. 1182; Jones and Ministry of Community Safety and Correctional Services (2010), PSGB No. 2005-3536 (Leighton); Re Becker Milk Co. and Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Loc. 647 (1996), 53 L.A.C. (4th) 420 (Joyce); and, OPSEU (Eve et al.) and Ministry of Labour (2014), GSB No. 2012-4693 et al. (Petryshen). [12] The Employer argued that the particulars which the Union references to justify the production of these documents are too vague and simply reveals that its request amounts to a “fishing expedition”. Having regard to the Union’s allegations and its particulars, I am satisfied that the documents requested by the Union as referenced above are arguably relevant. However, I am not inclined to direct the Employer to produce the documents for the time period requested by the Union. Since Ms. Carruthers became Ms. Cusack’s Manager no earlier than late July of 2012, and she is the primary focus of the Union’s allegations, it does not appear that the production of documents prior to the time Ms. Carruthers became the Nursing Manager at the NBJ would be particularly helpful. Accordingly, I direct the Employer to produce to Union counsel as soon as possible copies of the documents set out in paragraph 10 of this decision for the period from July 2012 to April 12, 2013. - 8 - [13] As noted previously, the parties resolved the remaining production issues, including the matter of which conditions are appropriate in the circumstances. Having regard to their agreement, I also direct the Employer to provide the following documents to Union counsel on or before August 15, 2014: - The documents in the Exhibit Register of the CISU Investigation into Inmate AR’s suicide, which may include institutional and/or health care records; - Any institutional and/or health care records regarding inmate HL in respect of the incident of February 11, 2013 and the letter of counsel Ms. Cusack received March 18, 2013, as referenced at paragraphs 85-101 of the Union’s particulars; - Any institutional records (e.g. occurrence reports) regarding inmate JD in respect of the incident of February 11, 2013 and the letter of counsel Ms. Cusack received March 18, 2013, as referenced at paragraphs 54-57 of the Union’s particulars, as well as accident and injury reports and associated nurses’ notes pertaining to the incident from the inmate’s medical file (if any); - Any institutional records (e.g. occurrence reports) regarding inmate R in respect of the incident referenced at paragraph 48 of the Union’s particulars, as well as the medical report issued when the inmate was taken off suicide watch; - Any institutional and/or health care records regarding inmate MB in respect of the incident raised in Ms. Cusack’s occurrence report of January 9, 2013. [14] The production of documents by the Employer in this proceeding is subject to the following conditions: - The confidentiality of these documents shall be maintained; - Neither the documents nor their contents shall be disseminated or discussed with anyone outside of this arbitration process; - The documents shall not be put to any use outside of this arbitration process; - Subject to what is set out below, the documents shall not be copied, but for copies that are required for the Vice Chair or a witness during the hearing; - Union counsel may provide a copy to Ms. Cusack for the purposes of this case, however, the conditions of production apply to her and at the end of this case Ms. Cusack must return her copy to Union counsel, who will return that copy to the Employer or destroy that copy and confirm that it has been destroyed; - 9 - - The only copies to remain at the conclusion of arbitration are the copies in the possession of the Board and one (1) copy which is to remain in the care and control of counsel for the Union. - The production directions in this decision are without prejudice to any position that either party may take in respect of future production requests if and as they arise. Dated at Toronto, Ontario this 29th day of July 2014. Ken Petryshen, Vice-Chair