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HomeMy WebLinkAbout2015-0353.Turpin.16-09-02 Decision Crown 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#2015-0353 UNION#2015-0678-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Turpin) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Debra McKenna Paliare Roland Rosenberg Rothstein LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel CONFERENCE CALL August 5, 2016 - 2 - Decision [1] Mr. Ian Turpin is a Registered Nurse whose employment with the Ministry was terminated on April 9, 2015. He filed a grievance that alleged his discharge was without just cause. By way of remedy he requests full compensation for losses in addition to reinstatement. [2] There have been a number of hearing days into this matter. Currently the Board is hearing from the grievor’s immediate supervisor, Ms. Linda Ogilvie. During the course of her evidence in chief the Employer attempted to introduce Letters of Counsel and two emails given to the grievor in the past. The Union strongly objected to the admission of these documents. Indeed, the Union went so far as to suggest that the documents themselves were so highly prejudicial that the Board should not review their contents in undertaking the determination of this matter. [3] It was agreed that this issue would be argued via conference call. Both parties had full opportunity to make submissions and review relevant jurisprudence. During this conference call the Union restated its request that the Board refrain from reviewing the documents themselves due to their prejudicial nature. While the Employer did not agree that this was necessary, it did agree to partake in an exercise following the call to send mutually agreed upon redacted versions of the documents for the Board’s review, if needed. [4] This decision deals only with the evidentiary ruling regarding these documents. UNION SUBMISSIONS [5] Ms. McKenna, for the Union, submitted that according to Articles 22.14.4 and 22.14.5 of the Collective Agreement, the Employer is obliged to produce full disclosure at the earliest possible opportunity. The documents at issue in this objection were not given to the Union until March of 2016, after eight days of hearing had been held. At the point the Union was given this disclosure much viva voce and documentary evidence was already before this Board. The Letters of Counsel are dated March 21, 2012 and July 31, 2012. [6] It was noted by the Union that the letter of termination given to the grievor on April 9, 2015 contained fifteen allegations regarding various incidents that took place on August 21 & 26, 2014, September 9 & 12, 2014 and October 2, 2014. There was no reference in the termination letter to the incidents that gave rise to the Letters of Counsel now being sought to be introduced by the Employer. Indeed, there is no reference to conduct of any sort that occurred prior to August 21, 2014. If the - 3 - incidents referred to in those letters were of such import to the Employer, it could have and should have put them into the termination letter. [7] The Union contended that the grievor is entitled to a fair hearing. The Employer cannot, in March of 2016 – for the first time – refer to documents that are highly prejudicial and have no probative value. [8] Mr. Turpin had no basis to challenge the documents as they are Letters of Counsel, the Union asserted. Indeed, it is his position that the facts set out within those letters are not accurate. Given his inability to challenge the veracity of the documents it would be highly unfair to allow the Employer to enter the letters into evidence four years after they were issued. [9] Ms. McKenna referred to the frequent references in the jurisprudence to the balance to be struck between the probative value of the letters at issue and the procedural fairness to which the grievor is entitled. This Board ought to deny the Employer’s request to admit these documents given the significantly dated allegations, the non-disciplinary character of the letters and the fact that the grievor was foreclosed from challenging the allegations. Further, the Employer ought not be allowed to raise new issues some seven months into the litigation of the unjust dismissal of Mr. Turpin. [10] The Union relied upon Re Hotel-Dieu Hospital & ONA (1997), 62 L.A.C. (4th) 164 (M. Picher); Re OPSEU (Patterson) and Ministry of Public Safety and Security) GSB # 2001-0925 (Leighton); Re OPSEU (Ross) and Ministry of Solicitor General and Correctional Services GSB #2690/96 (Herlich); Re OPSEU (Pickett) and Ministry of Community Safety and Correctional Services GSB #1999-1224 (Harris); Re OPSEU (Ranger) and Ministry of Community Safety and Correctional Services) GSB #2002-2375 (Leighton); and Re OPSEU (Bisaillon) and Ministry of Community Safety and Correctional Services GSB #2012-2847 (Herlich). [11] In closing Ms. McKenna stated that the Union was willing to stipulate that the grievor was made aware of certain Employer expectations. If all of the background information was redacted from the documents the Union would be content with that evidence being put before this Board. EMPLOYER SUBMISSIONS [12] Ms. Cohen, for the Employer, noted that there are four documents at issue. Two are Letters of Counsel and two are emails. It was underscored that the documents are not evidence of previous discipline and it is not the intention of the Employer to - 4 - suggest otherwise. The evidence is being proffered with the intention of showing that the grievor was made aware of certain performance expectations. [13] The Employer assured the Board that the evidence is not being used to bolster the discipline imposed and accordingly, the factual background set out in the documents is not important. While the Letters of Counsel presently set out certain facts, that context is not important to the case at hand. What is of relevance to the case is that the Employer made very clear to the grievor that it had various and specific performance expectations with respect to his nursing practice. He was instructed how to conduct himself in the future. [14] The Employer took issue with the Union’s mathematics regarding the age of the documents. It was suggested that the documents at issue were no older than twenty- two months at the time of the incident giving rise to the grievor’s termination and therefore cannot be considered stale-dated. [15] Ms. Cohen suggested that it is not unusual for a party to introduce certain evidence after the commencement of litigation. It was conceded that in an ideal world all documents would be revealed in advance of the first day of hearing. However, there are instances when that is not possible and irrespective of who bears the onus, that fact – in and of itself – does not make the evidence inadmissible. Given the limited purpose for which the documents are being proffered, the letters are not prejudicial as contended by the Union and should be admitted. [16] The Employer relied upon Re OPSEU (Barillari) & Ministry of Community and Social Services GSB #2001-1829 (Dissanayake); Re Government of Alberta (Department of Solicitor General) and Alberta Union of Provincial Employees [2003], CarswellAlta 2439, 75 C.L.A.S. 335; and Re Doctor’s Hospital and ONA (1997), 65 L.A.C. (4th) 4 (Newman). [17] By way of reply the Union reiterated that the case law is consistent that any evidence that is older than three years ought not be allowed. DECISION [18] At the conclusion of the parties’ submissions there was some discussion regarding what – if anything – the parties could agree could be admitted into evidence. During this conversation the Union made clear that it was prepared to allow the summary expectations set out in the letters but not the detailed account because those are too fact specific. However, as mentioned earlier, after further discussion the parties did agree to redact the documents in the event it was necessary for the - 5 - Board to review the proffered evidence in deciding the matter. Within hours of the conference call redacted documents were sent to the Board that the parties agreed upon for this purpose. [19] The Union would have me find that the documents are beyond the three-year period referred to in much of the jurisprudence. The Employer urged that at most the documents were twenty-two months old. I must disagree with both parties. While the documents are in excess of four years old as of the writing of this decision, the oldest was approximately three years old at the time the grievor was discharged and the grievance was filed. I note that in Re Hotel Dieu (supra), Arbitrator Picher – after making clear he felt compelled to “strike a fair balance between the concerns of both parties” – directed “that particulars and evidence be limited to a period commencing three years prior to the date the grievance was filed…”. This balancing was adopted by Vice Chair Leighton in Re OPSEU (Patterson) (supra) and evidence was allowed that pre-dated the filing of the grievance by three years. [20] Vice Chair Harris noted in Re OPSEU (Pickett) (supra) that the Board has not drawn “a bright line of three years back beyond which evidence will not be allowed.” He went on to refer to the task that must be undertaken in each case to find a “balance between probity and prejudice.” He ultimately ruled that evidence of incidents occurring over an almost three-and-a-half-year period would be allowed. [21] I agree with all of the above decisions. It should be noted that this line of cases dealt mostly with evidence regarding previous incidents which were relevant to the matter at hand but could have – in and of themselves - caused the filing of a grievance. The matter before this Board deals with Letters of Counsel which, as the Employer conceded, are inarbitrable. That distinction, however, does not change the need to balance the interests of the parties. [22] The Union was very concerned with the prejudice that could flow to the grievor if facts which have never been proven or allowed to be challenged were admitted into evidence via the documents at issue. The Employer, on the other hand, was motivated by wanting to be ensure that evidence is admitted that reveals it made known to the grievor certain expectations regarding his nursing practice. Both of those concerns are easily understood. [23] It is useful to review Re OPSEU (Barillari) (supra) wherein Vice Chair Dissanayake considered whether certain letters sent to the grievor were disciplinary in nature. In his deliberations he found that no discipline had been imposed and said, at page 31: - 6 - Certainly if the grievor repeats the conduct which was the subject of the letters, the employer may take disciplinary action, as union counsel suggests. In that event the employer will be obligated to establish just cause in the event the discipline is grieved. However, that does not have any relevance to whether the letters are themselves disciplinary. The employer is entitled to initially attempt to correct an employees’ conduct in a non-disciplinary way. As the Board observed in Re Black, this is to be encouraged. If the non-disciplinary approach does not produce the corrective results, it is open to the employer to initiate a disciplinary response. The non-disciplinary directions, letters etc. will not form a step in the progressive discipline system, but may well serve to establish that the grievor was made aware of the employer’s expectations of the employee, should that be in issue. (emphasis mine) [24] In Re Alberta (supra), it was noted that letters of counsel can be utilized in later disciplinary matters but for a limited purpose. It was stated at para 93: Non disciplinary counselling memos like the ones before us are not subject to the grievance procedure, and there is no provision in the Collective Agreement dealing with review of or challenge to performance appraisals. In these circumstances, these counselling memos will not form part of any progressive discipline. As with performance appraisals, the most the counselling memos will show is that the grievor was or should have been aware of the Employer’s concerns. We are satisfied that he was indeed aware of the Employer’s concerns over all the behavioural problems ultimately identified in the letter of termination, with the exception of the cigarettes incident. [25] In that case, the Board was considering whether there was just cause for termination or if a substitution of penalty was appropriate. The Board said at para 118: For the reasons given above, we must treat this incident as a “first offence” for discipline purposes, and must view it in the light of the grievor’s knowledge of the performance and behaviour expectations of the Employer……. [26] As noted above, the parties came to an agreement regarding the fullness of the documents at issue for the purposes of allowing the Board to review the proffered evidence if necessary in arriving at its ruling. As I understand that exercise – from - 7 - the emails that were exchanged at the time – there was a redacting of facts from the documents. [27] I did not feel it necessary to review those documents. To be clear, at the time of writing this ruling I have not reviewed the documents at issue in any form – either redacted or otherwise. However, it seems to me that the redacting exercise undertaken for the above noted purpose most likely met the need to balance the concerns of the parties. Therefore, the documents as set out in the Ms. Cohen’s final email of August 5, 2016 will be admitted into evidence. [28] I have assumed that some of the Union’s concern regarding content of the letters was alleviated by the redacting exercise taken after our conference call. In the event that I am wrong and that there are some facts set out within those documents, I will rely on the Employer’s assurance that the documents are proffered for the limited purpose of setting out certain expectations regarding the grievor’s nursing practice. [29] It goes without saying that at the conclusion of the evidence in this matter the Union is free to argue what weight – if any – these documents should be given. [30] It is unfortunate that these letters were not disclosed to the Union prior to the outset of this hearing. However, that fact – in and of itself – does not render the documents inadmissible. This is a case where there are many witnesses and numerous documents. It is not particularly surprising that there may have been some omissions in the initial disclosure. [31] This hearing will continue on our scheduled dates. Dated at Toronto, Ontario this 2nd day of September 2016. Felicity D. Briggs, Vice Chair