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HomeMy WebLinkAbout1996-2986.Union_97-07-10 Decision ONrARIO EMPLOYES DE LA COURONNE -- CROWN EMPLOYEES DE L'ONrARIO _ _ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (41tJ) 32tJ-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41tJ) 32tJ-139tJ GSB # 2986/96 OPSEU # 97U042-3 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - the Crown in Right of ontario (Ministry of Education & Training) Employer BEFORE G McKechnie Vice-Chair .- FOR THE G Leeb UNION Grievance Officer ontario Public Service Employees Union FOR THE D. Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING May 7, 1997 ~ ,,---- 2 The Issue is a motion brought by the Ontario College of Teachers supported by the Ministry of Education and Training to vacate a summons which was Issued to Margaret Wilson, Registrar of the Ontario College of Teachers, dated April 18, 1997 Schedule A to that summons required Ms Wilson to provide a variety of documents Including, position descriptions, resumes and applications for employment, selection criteria, documentation relied upon by the selection committee of the college, reasons why successful c.andidates were selected and the Job competition files with all job competitions Following the presentation of argument I Informed the parties that I was prepared to vacate the summons on the grounds of relevance, however, I declined to vacate the summons on the grounds that Ms Wilson was not a compellable witness What follows are the written reasons for this decision, which were also communicated to the parties at the hearing on May 7, 1997 Bnefly stated, the Union has grieved that the Ministry of Education and Training has failed to comply with Appendix 9 of the Collective Agreement With respect to certain operations which were transferred from the MInistry of Education and Training to the Ontano College of Teachers AppendiX 9 states In part as follows Paragraph 1 (a) The Employer will make reasonable efforts to ensure that, where there is a disposition or any other transfers of bargaining Unit functions or jobs to the private or broader public sectors, employees In the bargaining Unit are offered pOSitions With the new employer in terms and ".- 3 conditions that are as close as possible to the then eXisting terms and conditions of employment of the employees in the bargaming unit, and, where less than the full complement of employees IS offered positions, to ensure that offers are made on the basis of seniority When an employee has been transferred to a new employer, he/she will be deemed to have resigned and no other provisions of the collective agreement will apply except for Article 53 or 81 (Termination Pay) A number of employees applied to the Ontario College of Teachers and certain of these were selected The Union's grievance, which will be heard on its merits by Vice Chair Roberts on June 20, 1997, alleges that the Ministry did not make reasonable efforts to ensure the re-employment of persons from the Ministry The Union argued that in order to provide that, it required the data m the summons Counsel for the Ontario College of Teachers argued that the College is a self governing body, IS not a government agency and therefore not subject to the Grievance Settlement Board (GSB) The College was established by Bill 31, an Act ~- to establish the Ontario College of Teachers and to make related amendments to certain statutes, (RSO, 1996, c 1 2) (Act) The Act provides, argued Counsel, that Section 48 (2) stipulates that no person who administers the Act could be compelled to testify in "any civil proceedmg, other than a proceeding under this Act or an appeal or JudicIal review relatmg to a proceeding under this Act, with regard to mformation obtamed in the course of his or her duties" Counsel for the College argued that Ms Wilson as Registrar was therefore not compelled to provide the material contamed wlthm the summons In the alternative, Counsel for the - -- --- ----- 7"'" ,,---- 4 College argued that the summons was not specific enough and was tantamount to a fishing expedition The merits of the grievance had not yet been heard and therefore relevance was yet to be established The Union argued that Section 48 of the Act ?hould be read narrowly and should not prohibit the GSB from issuing a summons and giving effect to that summons The Union argued that Section 48 of Bill 31 should be read broadly and the section served as a protectIon for persons In their operations under that Act but could not protect them from a legitimate summons In another venue, such as a proceeding before the GSB With respect to relevance, the Union argued that it was not gOing on a fishing expedition, rather it had a theory of the case and wished to obtain the necessary information to prove that theory Counsel for the Ministry of Education argued that Vice Chair Roberts should be the appropriate individual to make decisions with respect to the relevance of documents In reaching my decision, I informed the parties that, given the facts placed before me, the Ontario College of Teachers was not a Crown Agency, that absent AppendiX 9, the Union may not be permitted to challenge a hiring decision of a non-government employer AppendiX 9 mayor may not alter this given the passage quoted supra The central Issues before me concerned the questions of --- 5 compellability of Ms Wilson and the relevance of the material requested in the summons I informed the parties that it was my view that a narrow ruling on compellability could hamper Vice Chair Roberts in his proceedings on the merits The arguments placed before me and the supporting case law did not, in my respectful opinion, provide sufficient authority for me to rule that Ms Wilson was a compellable witness It was clear that hearings before the GSB are civil proceedings (see Re The Crown in Right of Ontario (Ministry of Transportation) and OPSEU (1996), 54LAC (4th) 1, (at page 23), however, that is not sufficient for me to rule that Ms Wilson is compellable The Union provided as an example, that In a case pursuant to the Human Rights Code Ms Wilson could be compellable That mayor may not be so, however, the issue is whether or not the Ministry of Education and Training violated the Collective Agreement, not whether the Ontario College of Teachers violated the Collective Agreement because the College IS not a party to the Agreement between the Government and the Ontario Public Service Employees UnIOn I then turned my mind to the issue of relevance and it is clear from the authorities that a party that seeks to compel the production of documents must lay a groundwork of relevance Arguable relevance is the test (see Re OPSEU (Hurge) and the Crown In Right of Ontario (Ministry of the Attorney General), GSB deciSion dated December 10, 1992, (Vice Chair W Kaplan) In the Instant case, after reading the breadth of the summons, even though the Union indicated that it would -- 6 narrow Its request to files and documentation concerning former employees of the Ontario Ministry of Education and Training, I found that the Union had not met the test of relevance More particulary, the test of relevance is met best when the ments are heard by Vice Chair Roberts As a result, I stated to the parties that I was prepared to vacate the summons as It was wntten The Ontario College of Teachers stated that it could provide some data to the Union pnor to the hearing on the merits The partIes were agreed that the Ontario College of Teachers would provide the position descriptions/job specification forms for all positions which were In the Teachers Certification Unit of the Ministry of Education and Training and which were advertised as permanent job opportunities by the College Counsel for the College undertook to do this prior to the hearing before VIce Chair Roberts In conclusion, I vacated the summons and the partIes have agreed on a certain amount of data to be provided prior to the hearing on the merits Any other matters with respect to the production of documents can be taken up with Vice Chair Roberts DATED at Toronto, this 10th day of July, 1997. /,....., A/~/7V- ~._, --:...,,, ~';~,"F''''''''' I / I L-1. '--- Graeme H McKechnie, Vice Chair