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HomeMy WebLinkAbout1996-2690.Ross.03-04-02 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2690/96 0711/98 1543/01 UNION# 97D318 97D319 97D320 98A656 98A657 98A658 02Al12, 02A1l3 02Al14 02A1l5 02A1l6 02A1l7 02A1l8 02A1l9 02A120 02A121 02A122,02A123 02A124 02A125 02A126 02A127 02A128 02A129 02Al30 02Al31 02Al32,02Al33 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Ross) Grievor - and - The Crown III RIght of Ontano (Mimstry of the SOlICItor General and CorrectIOnal ServIces) Employer BEFORE Bram HerlIch Vice-Chair FOR THE UNION John BrewIll BarrIster and SOlICItor Ryder Wnght Blair & Doyle FOR THE EMPLOYER Chnstopher Jodhan Counsel Management Board Secretanat HEARING March 28 2003 2 DECISION A number of ongOIng pre-heanng productIOn and other procedural matters were dealt wIth In relatIOn to the 28 gnevances before me The Employer raised five dIstInct Issues The Umon, In turn, raised a productIOn Issue Some of the Issues raised were resolved or at least deferred at the heanng; others reqUIre my rulIng. I shall catalogue and, where necessary deal wIth and rule on each of these In turn. 1 ISSUES RAISED BY THE EMPLOYER a. General SufficIency of the Umon's PartIculars In response to the partIculars prevIOusly filed by the Umon, the Employer had made some specIfic requests for further partIculars The Umon has recently responded. The Employer merely noted that, once It had completed Its reVIew of that response, It reserved the nght, If necessary to make further requests or to raise the matter wIth the Board. b SpecIfic InsufficIenCY of the Umon's PartIculars. Item B of the Umon's Book of PartIculars ThIS Issue pertaIns to GSB File No 0711/98 whIch IS compnsed of three gnevances The full text of the statement of gnevance In the first of the three gnevances (OPSEU FIle No 98A656) reads as follows I gneve that the employer has vIOlated ArtIcle 10 of the collectIve agreement and any other agreement or legIslatIOn relatIve to thIS case The settlement deSIred IS To Include but not be lImIted to full redress 3 The wordIng of the next two gnevances (OPSEU Files 98A657 and 98A658) IS IdentIcal wIth respect to the settlement desIred and the statement of gnevance except the reference to ArtIcle 10 of the collectIve agreement IS changed to ArtIcles 41 2 and 3 respectIvely It IS perhaps not surpnSIng that wIth thIS less than fulsome descnptIOn of the nature of the labour relatIOns dIfficulty purported to be IdentIfied by any of these gnevances (now some five years old) the Employer has sought partIculars wIth respect to these gnevances It appears, however that It IS not only the Employer who IS suffenng as a result of the patent faIlure of these gnevances, as filed, to afford even the remotest clue as to theIr subject matter or the facts gIVIng nse to the complaInts It seems that the gnevor IS equally unable to recall what these gnevances were about. DespIte the Employer's ongoIng request for partIculars of these gnevances, despIte the general and specIfic dIrectIOns of thIS Board In ItS decIsIOns dated September 25 2002 and December 6 2002, no such partIculars have been provIded. The Umon now submIts that the gnevor "can not now recall any detaIls of the gnevances wIthout some assIstance for her memory" As a consequence the Umon seeks, as a precondItIOn to It beIng reqUIred to file partIculars of the gnevances, that the Employer be reqUIred to reVIew ItS files to unearth any matenal whIch may provIde InformatIOn about "the general substance" of the gnevances Armed wIth that aIde-memOlre the gnevor has apparently expressed the VIew that she wIll then be able to remember sufficIent detaIl to Instruct the Umon on the partIculars of the gnevances WhIle Umon counsel IS to be commended for a valIant effort In adverse cIrcumstances, I sImply find myself unable to accede to the Umon's request proffered, as It was, by way of a defense to the Employer's request that the gnevances be dIsmIssed. To accede to the Umon's request would, In my VIew be tantamount to requmng the Employer to provIde partIculars to the Umon of the Umon' sown gnevances And whIle fans of Irony mIght enJoy such a spectacle I doubt that even they would endorse ItS propnety ThIS IS not a case where the Umon seeks the productIOn of some known or reasonably antIcIpated document surreptItIOusly hIdden In the Employer's files ThIS IS a case where the gnevor IS unable to demonstrate any recollectIOn of the barest detaIl, the vaguest outlIne of the parameters of these gnevances Without commentIng further on the ObVIOUS lack of Importance or sIgmficance of 4 these gnevances to the gnevor as eVIdenced by the apparent total dIsappearance of any recollectIOn of any events remotely connected to them, I am sImply not prepared to take any steps to bolster or otherwIse aid m the salvagmg of matenal whIch appears very comfortably buned. The Umon has faIled to provIde the barest detaIls of the facts or Issues pertment to these gnevances It has faIled, despIte numerous opportumtIes, to respond posItIvely to the multIple requests of the Employer and orders of thIS Board. In VIew of the above, I hereby dIrect that these three gnevances (i e those whIch compnse GSB FIle No 0711/98) be dIsmIssed. c Whether Certam Gnevances Have Been Properly Referred to ThIS Board The Employer raised a questIOn as to whether certam gnevances (i e OPSEU File Nos 02A117 02A125 and 02A129) were properly referred to thIS Board m a tImely fashIOn. The genesIs of thIS concern may resIde m the fact that 2 of the gnevances whIch are the subject of these proceedmgs were (perhaps madvertently) excluded from a Umon book whIch was assembled to gather all of the relevant gnevances together In any event, as the Immediate dIsmIssal of the three gnevances m questIOn would have lIttle Impact, If any on the scope of the eVIdence whIch would lIkely have to be heard m relatIOn to the remammg gnevances, the Employer agreed to defer thIS motIOn to final argument. I also mdIcated to the partIes that I would make mqumes as to the date(s) upon whIch the Impugned gnevances were referred to thIS Board. Although I have not myself revIewed the mam GSB files, I am advIsed by GSB staff who have that the 3 gnevances m questIOn were referred to thIS Board on January 22, 2002 along wIth and at the same tIme as the other 19 gnevances whIch, together wIth the 3 m questIOn, compnse GSB FIle No 1543/01 I trust that thIS mformatIOn may be of assIstance to the Employer and that we wIll be advIsed m the event there IS any Issue or concern extant under thIS headmg. 5 d. Whether Certam Gnevances Allegmg Ulllust DISCIPlIne Ought to be DIsmIssed The Employer asserted that some half-dozen of the gnevances bemg dealt wIth m these proceedmgs ought to be dIsmIssed as marbItrable In each of these cases the gnevances complam of Improper dIsCIplIne However accordmg to the Employer m none of these gnevances was any dIscIplIne Imposed and neIther does the Employer have any mtentIOn m relymg on the events whIch are the subject of these gnevances for any dIscIplInary purpose In those cIrcumstances, the Employer asks that these gnevances be dIsmIssed. The Umon dId not senously dIspute the assertIOn that alleged Improper dIsCIplIne was at the centre of these gnevances In those CIrcumstances It would seem that If no dIsCIplIne was Imposed there may be a dubIOUS basIs for these gnevances The Umon asserts, however that dIscIplIne - whIch It notes does not necessanly always mamfest m readIly recogmzable forms - was, m fact, Imposed m each of these cases The partIes agreed, however to defer any further consIderatIOn of thIS Issue untIl the next day of heanng. e Whether Certam PortIOns of the Umon's PartIculars Ought to be Struck The Employer seeks to have certam portIOns of the Umon's partIculars struck. SIX paragraphs of partIculars (i e paras 1 2 4 1 1 1 2 4 1.2 1.2 4 1 3 1 3 2 1 3 3 2 and 1 3 3 3) are the subJ ect of thIS motIOn. It IS not necessary for me to reVIew the substance of these allegatIOns m any great detaIl m order to dIspose of the Employer's motIOn. An exammatIOn of theIr vmtage wIll largely suffice FIve of the Impugned paragraphs deal wIth events said to have occurred "m the early 90s" the sIxth wIth events datmg to 1984 The earlIest of the gnevances before me are dated October 1996 the most recent are dated September 2001 Indeed, as a result of the dIsmIssal of the gnevances under (b) above, all of the gnevances before me have been filed on one of the two mentIOned dates And, furthermore the allegatIOns m questIOn are specIfically relIed upon by the Umon m support of the 6 gnevances dated 2001 Thus, In terms of the allegatIOns contaIned In the Impugned paragraphs, we are consIdenng events whIch predate the gnevances by penods rangIng anywhere from 11 to 17 years In these cIrcumstances, I can sImply see no fair or reasonable basIs upon whIch to permIt the Umon to call or rely on eVIdence of events of such vIntage WhIle an argument mIght be advanced In some cases about the necessIty to establIsh or negate actual prejUdICe before determInIng whether to permIt eVIdence whIch sIgmficantly predates the filIng of a gnevance, the quantum of delay In thIS case IS sImply and utterly breathtakIng. It was not suggested that any of the partIculanzed events was ever the subject of any gnevance and neIther was there any suggestIOn that any remedIal response would be sought In relatIOn to these events And finally there was no suggestIOn that these allegatIOns are In any way central, In any fashIOn, to the Umon' s ultImate claim All of thIS, of course begs the questIOn as to what possIble probatIve value eVIdence of these events can have to these proceedIngs The answer IS, very lIttle Indeed and perhaps agaIn unfairly InvokIng the gods of Irony It mIght be the Employer who would ultImately benefit from thIS eVIdence For to the extent the Umon mIght otherwIse wIsh to establIsh patterns of Improper Employer conduct, callIng eVIdence of (up to) 16 year gaps In such conduct mIght not be the most conVInCIng approach. In that context, for example, I find the suggestIOn (in para 1 3.2 Of the Umon's pleadIngs) that the Supenntendent had In hIS mInd in 2001 an Intense antIpathy to the gnevor because, in 1984 he had refused to allow her to call the polIce about an apparent attempted theft of her car to be eVIdence whose lIkely ultImate probatIve value IS so neglIgIble that ItS absence IS extremely unlIkely to have any Impact on my abIlIty to determIne the gnevances It certaInly does not ment the partIes expendIng the reqUIsIte effort to prepare and present eVIdence about events whose age can be measured not In months or years, but In decades The temporal gap between the events descnbed In the Impugned portIOns of the pleadIngs and the events whIch gIve nse to the gnevances IS so vast that I am prepared to accept, certaInly In the absence of any proof or senous contentIOn to the contrary that sIgmficant prejUdICe would result from requmng the Employer to prepare to meet the case set out In those pleadIngs, To the extent I mIght have otherwIse had any hesItatIOn In that conclusIOn (and I have none) the neglIgIble probatIve value of the eVIdence In questIOn reInforces any conclusIOn to exclude It. 7 The offendIng paragraphs are hereby struck from the Umon's pleadIngs, No eVIdence wIll be heard In relatIOn to them. 2 The Umon's Issue - Further ProductIOn Requests The Umon sought the further productIOn of documents notably In the form of WSIB reports, Doctor's reports and certaIn occurrence reports The Umon had also been seekIng the productIOn of documents relatIng to Item B of Its partIculars ThIS latter pOInt IS now overtaken by the dIsmIssal of those gnevances as set out In 1 (b) above With respect to the other outstandIng requests, Employer counsel undertook to have a reVIew performed of the Employer's file wIth a VIew to IdentIfYIng and produCIng documents the Employer accepts are relevant to these proceedIngs, at least wIthIn the context of the Umon's partIculars The Umon IndIcated that It was content WIth that undertakIng but reserved the nght to reVIsIt thIS Issue In the event that It was unsatIsfied wIth the Employer's efforts In that regard. Summary For the reasons set out above, the three gnevances whIch compnse GSB FIle No 0711/98 are dIsmIssed. The folloWIng paragraphs 12411 1 2 4 1.2 12413 13.2 1 3 3 2 and 1 3 3 3 are hereby struck from the Umon's pleadIngs 8 Heanng m thIS matter wIll contmue as prevIOusly scheduled on Apnl 9 2003 Dated at Toronto thIS 2nd day of Apnl2003 ~ ~).L~~~~l: _. , ... .. r~ . :.. I .. :" Bram Herhch, Vice-Chairperson