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HomeMy WebLinkAbout1995-0810WHITE98_06_23 ONrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TE~COPIE (416) 326-139l5 GSB # 0810/95 OPSEU # 95D080 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Wlute) Grjevor - and - The Crown in RIght of Ontano (Ministry of Community and SOCIal Services) Employer BEFORE N Dlssanayake Vice-Charr FOR THE C Flood UNION Counsel Koskie Minsky Bamsters & Solicitors FOR THE DSamaras EMPLOYER Counsel Legal Services Branch Ministry of Conununity & Social Services HEARING June 19, 1998 2 Interim Decision This interim decision deals with a request by the union for an order for production by the employer of two sets of documents (a) A memorandum of settlement in Grievance Settlement Board file No 750/96 dated January 22, 1997 with all exhibits as referenced including exhibit C and all documents referenced therein including any and all ite~ referenced in paragraph 4 thereof The grievor in that grievance was Mr Dan wither (b) Any and all documents added to Mr Dan wither's personnel file at the Huronia Regional Centre since the union last inspected that file in August of 1997 The background to this case has been set out in a number of previous interim decisions Rather than repeat that, I refer to the interim decision dated October 9, 1997 It is sufficient to merely note that this is a case where the grievor is challenging his discharge, which was ultlmately based on a complaint by Mr Wither, a co-worker, that he had witnessed the grievor sexually assault a female resident of the Huronia Regional Centre In the decision dated October 9, 1997 the Board dealt with a similar request by the union for production of ten documents The Board ordered production of all but two of the ten documents requested At pp 6-8 it wrote It is not disputed that the Board has the authority to order pre-hearing production of documents pursuant to S 48(12)(b) of the Labour Relations Act The issue is whether the Board should exercise that authority in the 3 S 48(+2) (b) of the Labour Relations Act The issue is whether the Board should exercise that authority in the particular circumstances In determining that issue, certain general principles must be kept in mind The first is the distinction between the issue of production and that of admissibility of evidence The rules governing the two are different Not everything that is subject to production may be admissible In evidence It follows therefore, that the condltlons required for production are less stringent than those for admissibility Arbi trator Knopf in Re West Park Hospital, (1993) 37 LAC (4th) 160 at p 167, in setting out the appropriate considerations in exercising the power to order pre-hearing production of information, concluded that policy considerations favour pre-hearing disclosure In coming to the conclusion, several factors have been taken into account Let us start with the principle that labour arbitration is effective in providing a speedy and efficient resolution for the parties of important issues in a forum they can control and which they have designed Boards of arbitration exist to assist the parties The decision evolves from concepts which are intended to foster fairness, harmony and sensible labour relations Anything which can assist in the preparation of cases, the refining of issues or which will facilitate settlement should be encouraged As a general proposition, pre-hearing disclosure will assist with all these matters and should occur wherever possible Indeed, parties do as a matter of course provide pre-hearing disclosure to each other for these very reasons However, where the disclosure is contested, the following factors should be taken into consideration First, the information requested must be arguably relevant Second, the requested information must be particularized so there is no dispute as to what is desired Third, the board of arbitration should be satisfied that the information is not being requested as a "fishing expedition" Fourth, there must be a clear nexus between the lnformatlon being requested and the positions in dispute at the hearing Further, the board should be satisfied that disclosure will not cause undue prejudice - 4 While pre-hearing production of documents may lead to a certain amount of "discovery", that should not deter arbitrators from ordering production of documents that are arguably relevant to the matters in dispute Re Mallenhauer Ltd. (1987) 0 L R B Rep Sept 1156, at 1159 and Re F.W. Fearman Co., (1990) 15 LAC (4th) 294 (Marcotte) The Board is satisfied that none of the documents sought by the union ought to be denied on the grounds of lack of particularization, fishing expe9ition or prejudice The union has clearly identified the exact documents it wishes to be produced These documents are readily available and it is not suggested that the employer would be put to any undue cost or inconvenience if required to produce them Nor has the employer taken the position that any of the documents should not be produced on grounds of confidentiality or prejudice Therefore, the dispute essentially centres around whether the information is arguably relevant and sufficiently connected to the issues in dispute in this grievance In determining this issue, the Board is also mindful of the fact that this is a discharge grlevance The employer has attributed extremely serious misconduct to the Grievor If the employer's position is upheld, the Grievor not only will lose his job with the employer, but most probably his career as a residential counsellor will be at an end Therefore, the Board must carefully weigh the employer's interests in not producing the documents with the right of the Grievor to be able to present his case to the best of his ability Having considered the submissions of the parties, in light of the factual background of this case and the principles discussed above the Board directs as follows The employer shall produce to the unlon all of the documents requested by the union and listed in this declsion (supra) except items 14 and 19, in advance 0 f the next scheduled hearing In relation to this matter It is to be noted that the first set of documents relating to the settlement requested presently is identical to the documents comprising item 14 in the previous request, which was denied by the Board in its decision of October 9, 1997 The Board considered all of the submissions of the parties in reaching its decision It is clear that - 5 serious nature of the allegation made against the grievor, the severity of the impact such an allegation may have on the grievor's future employment prospects and the fact that credibility as between the grievor and Mr wither was at the heart of this proceeding It is equally clear that following such consideration( the Board did not feel that it was appropriate under the appli..cable principles, to order the . production of the settlement documents I agree with union counsel that the Board is not indefinitely bound by its prior interim ruling by a principle akin to Res Judicata However, based on the submissions, the Board finds no slgnlflcant change in circumstances that would warrant or justify a reconsideration of its earlier ruling with regard to the settlement documents The present request was made at the close of the union's evidence I cannot agree with union counsel that the consideration of the significance of Mr Wither's credibility at this point is any different than it was in September 1997 when the union's evidence was still being presented In any event, while the unlon has led evidence attacking Mr wither's credibility since then, no findings with regard to credibility of anyone can be made until the employer has completed presenting all of its evidence Thus, all that the Board can state now, as it did then, is that credibility remains a central issue in the case The Board finds the union's request for production of documents added to Mr Wither's personnel file since August of 1997 also to be unjustified It must be recalled that the events which form the subject of this grievance go back to 1989 The grievor was discharged in 1995 6 It is purely speculative that any documents may have been added to Mr wither's file in late 1997 or 1998 that would have any slgnlflcant relevance to the subject matter of this grievance The Board has recognized that the grievor must be afforded some latitude in defending himself against the serious allegations levelled against him However, that latitude cannot be unlimited _Other considerations must be balanced against this accommodation(Re West Park Hospital, supra) The present request is so speculative that the Board does not consider it justified For the same reasons, the Board does not consider it appropriate to order the employer to allow a further inspection of Mr wither's personnel file at this time As a result, the union's request for an order for production lS denied in its entirety .) j l'g(, Dated this~/ day of June, 1998 at Hamilton, Ontario ~~~~~?/~4 '-- ' N Dissanayake Vice-Chairperson