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HomeMy WebLinkAbout1990-1054.Quinn.90-03-25 ~ i..j .;\ )) ,- I ONTARIO EMPL Oyts DE LA COURONNE CROWN EMPLOYEES DE L'ONTAAIO GRIEVANCE COMMISSION DE ·1111 SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, surTE 2100. TORONTO, ONTARIO, MSCi lZ8 TI:LEPHONfi/TELfPHONE' {416¡ 326- IJ88 lBO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G IZ8 FACSiMILEITfLfCOPIE: (416) J26-IJ96 Preliminary Decision 1054/90 ,- IN THE HATTER O~ AN ARBITRATION Under THB CROWN EXPLOYEES COLLECT:IVB BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD \ BETWEEN OPSEU ,(Quinn) , ,; Grievor' - anc! - The Crown in Right of Ontario, (Ministry of CUlture and Communications) ~. . -- Employer BErOD: w. Kaplan Vice-Chairperson w. Rannachan Member D. Clark Member FOR TBB o. Wright GRIEVOR counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors \ :i;, \,' \,. FOR THE J. :Knight EKPLOJER Counsel Fraser & Beatty Barristers & Solicitors HEARl:Nq: March 5, 1991 '"-- ; ~\ I \ I 2 Introduction By grievance dated May 28, 1990, Austin D. Quinn, a Security officer II at~the ontario Science Centre, grieves the imposition of a one-month suspension without pay. The remedy sought is recision of the suspension, retroactivity of lost benefits and seniority, and removal from the grievor1s file of any references ~ to the matter for which the discipline was imposed. A hearing was convened in Toronto, at which time the Board was asked to address a prel imin'ary issue, namely whether the employer must disclose certain notes taken in the investigation of the matter in disþute. " , - In brief, the grievor was disciplined following an investigation by the ~mployer into a ,complaint filed by another member of the .. ..': ~... bargaining unit that the grievor had sexually harassed her contrary to the Human Riqhts Codé' and to the· employer's own policy. It is , . ...<~" ~ .t~ :~ ~ .. . . ~ . not , necessary at this time to review the substance of this complaint, although certain documents were filed with respect to it. it : Suffice to say that these documents ,raise one of the central issues to be determined in this case: credibility. The complainant alleges a series of incidents and the grievor denies these allegations. , \ '~ , l' In its preparation for this case the Union served subpoena duces tecum on the employer seeking disclosure of certain records. At the hearìng, counsel for the employer indicated that the only records not already disclosed were certain journal entries which , ·. n " , , 3 the employer agreed to disclose, and certain notes of Mr. George Sutton, who conducted the investigation. These notes are of the varl0US interviews that Mr. sutton conducted prior to the preparation of a report which was relied on by the employer in imposing discipline. The notes were prepared either at, or immediately following, interviews with six bargaining unit members. ,~ The report does not name any of the persons who provided information to the employer, although one person can apparently be identified as a result of his position, which is referred to. The matter before. the Board is whether or not these notes must be disclosed. Both parties recognize that: the general practice and best approach is for the employer to voluntarily produce all relevant documents. In some cases, however, the employer may have reasons for not . wishing to do so. In this situation, ,one way in which documents may be compelled to be produced is through witnesses at the hearing, following a demand by way of subpoena duces tecum. Notwithstanding this technical requirement, the parties agreed in order to facilitate the hearing of this case that, if the Board decided that the subpoena duces tecum should be given effect then , it would so declare and the employer would then disclose the notes \"~' in 'advance of the next hearing, subject to certain restrictions. ArqUment union counsel took the position that because credibility was such ;' , (. , ' ( j I 4 an important issue in this· case, the notes should be disclosed. Counsel argued that while the notes may not have the same evidentiary value as a signed statement, they were, nevertheless, potential evidence of such a statement. Counsel also pointed out that there was a fairness issue at stake in the sense that the employer could use its notes of its interview with the'grievor for ~ the purpose of impugning his credibility '(indeed, the employer could use the notes of its interviews with any witness for this , basis) , while the union had no similar advantage. In making these submissions, union counsel relies on the Board's decision in Hyland 1062/89 (Ratushny) . In this case, where credibility..was also in issµe,: the Board considered _ an appl~c.ation .... ." . ,....< " . ".~'" ~. . ,i for production by way of subpoena duces tecum. The employer did not.wish.to disclose. witness statements and occurrence reports for ... -: ~ .... t N . fear that su~h disclosure ~ight lead some witnesses, consciously or unconsciously, to .modify their evidence at the hearing to conform with that of other witnesses. The Board in the Hyland case reviewed the arbitral jurisprudence on subpoena duces tecum and referred ,to the general rule of the Board in cases of this' kind being whether or not the material' in i 'j~ \, question is "arguably relevant. II The Board in Hvland also referred to other decisions of the Board. In Little 522/88 (Slone) , a job competition case, the Board was satisfied of the relevance of a union subpoena duces tecum and ordered that the grievor be given õ f\ . ti. I ,I 5 every opportunity to prove her case. In Eadie 766/88 (Devlin) , another job competition case, the Board 'found that the request for documents could not be described as a "fishing expedition" in that the union sought specific documents, which were known to exist. The Board in Eadie went on to observe that for the purposes of production, relevance should be broadly rather than narrowly .~ construed (at 2). Having concluded its review of the authorities, the Board in Hyland found that the materials sought by the union met the test of being " arguably relevant. -, Moreover, the Board found that written , . '-- importance materials of the kind being sought were of some lIin testing , " and' credibility . ( ,. particularly the accuracy of 'testimony, where ínconsistencies in testimony areanticipated'and the accuracy of recollection may'be crucial" (at 4). - , Union counsel argued that the notes being sought in the instant case met the requirements set out in Hyland and in the other cases. In a related submission, counsel advised the Board that the union intended to raise certain concerns with respect to the conduct of the investigation.' In particular, the union may take the position \,:i, \, that the investigation was improper and that irrelevant issues were considered. This, counsel submitted, could go to penalty, and was another reason in favour of ordering disclosure of the notes. . , ji - h 6 Employer counsel argued that the union has already been provided with sufficient information particularizing the incidents that form the basis for the discipline imposed. In coùnsel's submission this is all that the employer is legally required to produce. Moreover, counsel argued that the employer should not be required to identify witnesses it 'may call to give evidence. Counsel was of the view ~ that the employer had discharged its obligation to the union by directing it to the material facts upon which it relies. Counsel also submitted that the notes in question have little, if any, evidentiary value, and that as credibility was so critical to the case it would be better to hear the evidence in question. with respect to the Hyland case, counsel argued that this decision could be distinguished from the instant case because the documents in HVland had evidentiary value, while the notes at issue here had no . such value. Finally, counsel noted that Hvland could also be distinguished from the instant case in that what was being sought in Hyland were signed and dated witness statements and,occurrence reports, while the documents at issue here were simply the notes of the person conducting the investigation. Decision h ¡ , ¡, In our view, the notes should be disclosed. Given the importance of credibility in this case, and given the use to which these notes .may potentially be put in testing credibility, we have concluded that the test in Hyland and related cases has been met. This is > i~ t ¡;; L\ 7 not. a situation where the union has gone on a fishing expedition. Specific documents, known to exist, are being sought. The grievor has been disciplined for a very serious offence, and these notes have the potential of assisting the union in preparing and . presenting its case. Moreover, given the additional concerns raised by the union with' respect to the sufficiency of the ,- investigation and certain "irrelevant considerations" said to have been taken into account in determining the penalty, the case for " disClosure is strengthened. Following argument some discussion took place with respect to conditions that should be imposed if the Board ordered disclosure, of the notes. Counsel agreed that in the event of disclos~re the notes in question would be retained by union counsel and not circulated among potential witnesses. The intention, of this . measure is to preserve what vaiue the notes may have in assessing " credibility,. It was also agreed that should the Board order disclosure, that disclosure would be made prior to the next scheduled hearing date. Moreover, it was agreed that a disclosure order would not preclude either party from making further submissions as to the relevance and evidentiary value of the notes \ ", Finally, ,J., should they be sought to be introduced as evidence. it ,; ì \' was agreed that while certain exhibits (nos. 2 , 3, 4 , and 5) would be submitted for the purposes of rendering this preliminary decision, this submission does not affect the right of either party to argue over their admissibility as to the merits of the grievance --' i, J: , 8 when the Board reconvenes. Any document found inadmissible'will, accordingly, be returned to the parties. I In the result, the employer is ordered to disclose the notes to counsel for the union subject to the conditions noted above. ~ f""'t-ed at Ottawa this 25thday of March 1990. I!u¿: :~Plan Vice-Chairperson . ..;-'¿ - . " ~ ' C~ '? , /-¿j, ~ ,t:1".L---~~ ~ ~- ~ -~ .. " . " . ' . W. Rannachan Member- ' , " .p ... " ""1'~ , . a .; ~. . . . . ... "- . - . ;.,r \ ^~ ~', --, ~ . . - .' ~ ' '" ~ . ~ - , - , - - - . - .~. D. Clark . Membér , +- ..-. .1 ~ - . :- l ~ . ; " .I.. li \ , \,