HomeMy WebLinkAbout1995-0810WHITE97_10_09
OWTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'OWT"ARIO
11_ GRIEVANCE COMMISSION DE
SETTLEMENT ,
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-1396
GSB # 810/95
- OPSEU # 950080
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (White)
Grievor
- and -
the Crown in Right of Ontario
(Ministry of community & Social Services)
Employer
BEFORE N Dissanayake Vice-Chair
FOR THE C Flood
UNION Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE C Samaras
EMPLOYER Counsel
Legal Services Branch
Ministry of Community & Social Services
HEARING September 15, 1997
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Interim Decision
~his cecision deals with a motion by the Lnion fer an order for pre-
l~earin~ p~ocuction by the employer of ~ertain documents A hearing with
r.!:gard to tl'ds mot:i~n was held on September 15, 1997 follo'JJed by
submissions in wr _ tins:, the last of which was received by tne Beard on
0ci.:ober 2, 1997
In crdar t.o put: the i~sue into cont:ext it is necessary ~o briefly
8u":1 ine the natu.re of this grievance The GrJ..evor was employed at the
HUrOtllo. Regional Cem:re (HRC) in ~rillia Ontario ~n the position c!
Reside.."1.tial Counsellor On March 28. 1995, ha wa~ convicted ur.der section
271 of the Criminal Coda of sexua~ assault en a female resident of HRC,
hereinafter referred to as ~X' On May 1, 1995, the Grlevor was dismissed
by the employer His grievance alleging dismissal without cause came
befm:e :his Beard ir. due COu.rSe
J'a_ 1: tb.& hearir:g, an issue arose between the part~es as to :he legal
s2gnificance of the cer~lflcate Of conviction By decision dated Octobsr
1 ~ 1 <;j'lfi, ~~~ ~nA~~ hpl~ ~h~~ fnr r'l1T{lnc;p~ nf rh,::. ,..T'hir-r;;ot-il'"'lTl n,::.T'nr<:> 1 t" .
che certlfica:e of conviction would not be received as ccnclusive cr prima
f ~c e ,-=,..iden-::e af the fact t.hat:. t.he se.."i:Ual assa'."l.!.. ~ occurred upon j\;l.dicial
::-e,.Tiew of that declsion the court partlal~y di3agreed with the Board's
decis_-::m In its jud]e.rne:lt [Reported at \_997) j2 C ? (36 572J the Cc.u~t
neld t.hat "In the part.i -ular CirC1.h"1\.Sr.a!1CeS ..Jf r:his case ene Ece.rd Oi.:.ghc tc
r:a"'.re rna.de it clear -c11at t.he con"'\.li~,:ion w01,.ild be rr::cei".rad. ar~d. st.?nd as p!:"l.I!'...3.
facie evidence of the sexual assat:lt " The cour-t left undisturbed, the
Board's ded,sion t.o t.he extent that it refused tc accept the conviction as
concluslve proof elf \:.11e sexual a$sa1,.lt
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H.~ving issued a further decisior dat~d July 7, 1937, de1:errnining a
dispute between the parties as ~o the scope of the evidence the union was
entitled to lead in l~ght rf the court's judg~~ent the llea.ring commenced
into the merits of the grievance
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However, at the e-.nd 0 f the union'$ opening stat.ement: during which
union counsel undertook t.o ~!.'oceed first with the union's evidence, he
moved fer an order directing the ~loyer to produce the personnel file of
Mr Dan Wither The ~lc,ye,'C cb;Jected to the production of the whole file
After receiving submissions. the ~oard by decision dated August 21,
19~7 refused to order production 8S requesced I:1stead, the Boa~d ordered
the employer to provide union couosel access ~o the r~~~ested file for tr.e
p~rposes of review and identiflcation Of the particular documents in M~
wither ~! file which he wished 'cO be produced This order was made subJect
to a n\.k"1'ber of conditions, including the m~intena~ce of confider.tiality by
union counsel
\<."hen t~e hearing resu=ned on Septerlloot' 15. 1997 , the Board was advisee
::.~a~ f~yther to the Board order, the union =ounsel had reviewed the f~le
a::.d .i.den-::J..::ied Q, toc.al )f 23 ao,~1.l.ments ir.. Mr Wtther'g file, "l'lhic11 he
wanted produr:ed ':1".e employer a.g~eed to prodl.lce 13 of the 23 doc'.;..."t,ent:s
but objected to the production of the other 10 documents This decision
deals wi. th the motion for product~on as it. relates to these 10 documents
:t is convenient t.o h.st tb~ dOCl.En~n t s exaCtly as the union '1aj
listed and described th~~
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Basic Wor1.:: His";l'I:y
2 Letter of August 28, 1996 from EI Human Resources
Cemtre ':0 HRC re statl,l$
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3 Letter of August 28, 1~96 from EI Human Resources
Centre t.O ERe :ce approval
4 S~bpoena issued 2S/04i94 re Jack v[~ite
.
~TIIDI0vee ~81ation~ portiQn
~ ~ Lel;t-er from M Cillis to Dan Wi ther Febr".ary ,
.J....j"
1997
12 Ac kno'w ledgemen t of w"DHP training signed February
19, 1997
, - Re~ei~t a~d review of St~~darcl$ of Conduct signed
.....:1
February 10, 1997
14 !~emorandlL"!'\ of Settlement in GSB file No 750/96
,JarLlary 22, 1997 'Wi ~h all ex..."J.l.bi ts as referenced
including eY.11ibl. t c and ail doCUt'lien t s referenced
therein 1!lcl-u1ing any and 03,11 items referenced in
paragrapn 4 therecf
:-Ie::!.} t,;;,hL.'1~d~ca l.LT,~ava
17 Medical Report to facilitate rehabilitation
received HRC Noverr..ber 16, 1995 re request for
':ransfer
18 Subpoena re Jack White dated February 8, 1995
returnable March 27 1995
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t"0 ::J
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19 Subpoena to Wither re viola.tion of probation of "X"
dated J~uary 27 1995
Counsel verbally described the contents of each of the foregoing
doc~ments -
By way cf f~rther backgro,tnd, ~t should be noted that in d~smissing
the Grievor the employer did not conduct any inve.stiga~ion of its own
::-~sLead it relied so:'ely on the conviction in the criminal courts
Furthermore, it is COITmon ground that it was Mr Wi ther I an emplo:r'ee of
HRC, who macie the allegation that the Grievor had saxually assaulted x
X was a developmer.~al1y han~icapped person, who did not have the capaci~y
to sr.ed any light or~ the allegation Mr Wither first ra_sed the
allegaticn in 1\ugus:. of .1..993, that the assault had taken place in April
.!189 It is common ground alse that Mr Wither was the only eye w~tness
~o the inc~dent and that the conviction was based $o~ely on his testimony
'The primar...{ Pos~!;:lon of the Grievor at th~$ arbic,::,aticn is that Mr
wi~her's alle'3ao:.ior. was. a to-cal fab;:;-icaticm and t:hat Mr 'i'li ther had
.llterior r.\ctives ::cr doing s,-, The grievor's evidence will be ~hat eve~
pi:. .l-or ;;:0 his discharge he conveyed to the e.-nploye.r- hl.s pcsitior.:. t,ha t M::-
W~~h~r fabricated the allegation
The f:)r~G"oing makes it ~bvious that the cred~b~lity of the G=~evoY
and of Mr Wither wiil be at the forefrcnt 0= the proceeding bef0re the
Board Tne parties recognized tl'la t the 01..tcome will be decided by a
detennination of cred.....b:.lity between tte two
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It is not di~puted that the BOard has the autnority to order pre-
hearing produc~ion of documents ptir$u~~t to S 48(12){b) of che LabQ~r
Relar; j on!; .l\ct The issue ~s whether the Board should exe:CC1.se that
authoz'ity ~n the parl:icular CJ.rcurnstances Ir: determin:.ng chat. issue,
certain general principles must be kept in mind
The first is ~~e distJ.nction between the J.ssue of production and that
of admissibility of evidence The rules soverni~g the two are different
Not everything t:hat is subjoact to productJ.or~ may be a.dmissible in evidence
It follows therefore, that the cond~tions required for production are less
stringent than those for admissipility
Arbitrater Y.nopf j.tl Rp. WP.!'lr. J:>~'rk H~spital. (1993) 37 LAC (4th) 160
at p 167 in settJ.ng out the appropriate considerations in exerCJ.s~ng the
pCt~....er t.o order pre-.hearlng pI'oduction of J..tlfonnaticn, conclu.ced that policy
consideratior.s favour pre-hearing disclosJre
In coming to the conclus~on, several factors have been
taken itlto account Let t:.s start with the pr~ncipl$ thi;1t
labour arbitration is effec:ive i:"'. providing a speedy and
efficient resolution for the partias of important issues in a
for~. they can control and which th~~ have designed DOi;1rds of
arbitr~tion exis~ to assist the par~ies The de~isinr. evolves
from concepts WhICh a.re intended to foster fairness, har~mn~y
an"", set'.;;;ible labour relat:l.ons An..:t'thing which can assist .ir.
the p~epat~t.:..o:'l of cases, the ref~:l~ng of issues or wh.lch w_...._
f;tCllitate settlement shct:.ld be er.couraged As a genera.:.
praposlticn, pre-hear~ng disclosure w~ll assist with all these
matters ~illd should cccur wherever possible Indeed, pa~ties do
as a ~a~ter of co~r$e pro~ide ~re-hear~ng di~closure to each
ether fo~ these ve~1 reasons
HO'",ever J where the disclosure J.$ contested, the following
factors should be !.:ake:.l ~nto cens-lderat.:.on Fl.rst I 1:he
inforRation re~Jested must be arguably relevant Second, th~
reg'..l8sced H...fCt'!l'\atlor. must be p5.rticulan.zed 50 there is rle;
dispute as to what lS desired Third, the board of arbitration
should be satisfied that the information ~s r.ot being requested
as a "f~sh~ng expedition- Fourth, there must be a clear nexus
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bet.ween the info~~tion be~ng requeste6 and the positions i:."l.
dispute at the ~earin9 Further I the board should be satisfied
that disclOsure wilL not cause ur.due prejudice
W.oile pre-heariZlg product:i.cn of doci.1..'Tlents rr.a.y lead to a certain
amount of. "di scovery" , t:hat should no~ deter a=bitrators from ordering
p~(:I:1UC t_ ion of docwnent.s that are arg'.,:ably relevant to the matters in
dispute Re Mallenhauer Lt.rL (1987) 0 L R B R.ep Sept 1156, at 1159 and
Re -:::'.W. Fearm<'lr"J Co., (1990) 15 LAC (4th) 294 (Marcotte1
The Board is satisfi.ed that none of the documents sought: by the union
ought to be denied on the grounds of lack of particularization, fiShing
expedition or prejudice The uni::m r...as clearly identified t.he exact
dOC1.lInents it wishes to be produced These documents are readily available
and it is nQt suggested tha: the employer w~u~d be put to any undue cost
or lnconvenience If requ.ired to prod'Jce :hett ~or tas the employer taken
the posit~on th~t any of th~ documents sho~ld not be produced on grounds
of confidential~ty or prejud~ee Therefore, the dispute essential.ly
centres around whether the inforn..ation is arguably relevant a::ld
suff:i.ciently connected to the issues in disputfilt in this gr1.evance
In determining this issue, the Board is alse ~ir~ful of the fact that
this is a di..sch",rge gr ievance The e:n;r: 1 ':Jyer has attribute~ extremely
serious miscon&Jct to the Gr~evor If the employer's position is upheld,
the Grievor not only will lose his job with the employer, but n'lO$t probably
his career as a residential cour.sellor will be at an end TherefoI:e, the
Board must carefully weiSh the employer'S interests in not producing the
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docu..-nents with the t'ight of the Grievor to be bble to present his case to
the best of his ability
HavJ,ng considered the subtdssions of the parties, in l~ght of the
fae~ual background of this case and the principles discussed above the
Board d~rects as follows
The employer ;hall produce to the union e.l1 of the documents
requested by the union ~d listeQ in this decision Cs.upya) except it9!l".s 14
and 19, in adva.t1.c~ of the next scheduled hearit'J.g' in relation 1:0 this
matter
Dated this 9th day of October, 1997 at Hamilton, Cntario
~
N. O,usanayake
Vice-ChairDerson
80 d ~6U 92:L 9 r t'~Cj(1) ,~?' n I .:i.....OF.C,1 r'O'~~ T
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