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Home My WebLink About1996-1698KUMOR98_03_27 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE600, TORONTOONMSG tZ6 TELEPHONEITELEPHONE (41tS) 32tJ-13BB 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) MSG tZ6 FACS/MILEITELECOPIE (41tS) 32tS-139tJ GSB # ] 698/96 OPSEU # 96A427 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kumor) Grievor - and - The Crown In RIght of Ontano (Mimstry of the Sohcltor General and CorrectIOnal Services) Employer BEFORE H S Finley Vice-Chair FOR THE E Holmes UNION Counsel Ryder Wnght Blair & Doyle Bamsters & Sohcltors FOR THE A. Boardl EMPLOYER StaffRelatlons Officer MinIstry of the Soltcltor General & Correctional ServIces HEARING March 10, 1998 G.S.B. 1698/96 DECISION ONA PRELIMINARY MATTER RESPECTING PRODUCTION OF DOCUMENTS The Gnevor, Peter Kumor, is a driver WIth the Ministry of the Solicitor General and Correctional ServIces. He IS based at the Metro-West Detention Centre. In August 1996, he was suspended for three days for failing to operate a ministry vehicle in a safe manner, and for a further three days for fading to submit an accurate occurrence report respecting damage to the velucle. In preparing for the hearing, the Union, Counsel, Ed Holmes, in keeping With Article 22 14.5 of the current Collective Agreement The parties agree that at the earliest stage of the grievance procedure, either part)' upon request lS entjtled to receive from the other, full disclosure requested a number of items from the Employer This request was met by Mr Ajamu Boardi, Counsel for the Employer, with the exception of the Grievor's personnel file. At the outset of the heanng, counsel for the partIes, unable to arrive at an agreement respecting the production of the personnel file, asked the Board to rule on the matter Mr Holmes referred tb,e Board to Re West Park Hospital and O.N.A. 37 L.A.C. (4th) 160 (Knopf) at page 167 However where disclosure is contested, the following factors should be taken into consideration. First. the infonnation requested must be arguably relevant. Second, the requested information must be panicularized 50 tllere is no dispute as to what is desired. Third, the board (If arbitration should be satisfied that the information is not being requosted as a 'fishing expedition" Fourth, there must be a clear nexus between the information being requested and the positions in dIspute at the hearing. Further the Board should be satisfied that disclosure will not cause undue prejudice. 1 - Mr Holmes made the following pomts m h1s submissIon. . The Employer stated in correspondence that it reviewed the Personnel file In meting out discipline . The Union, and he as Counsel, need the file to adequately represent the Gnevur . The f1le is n.ecessarv in a presentatlOn of whether or not dlsciphne was warranted . The file is necessary in a presentation of whether or not the degree of dIscJpline was appropnate, if it was warranted. . The case law says t.l-tat an employee~s record, both good and bad, is to be taken into account in considering the appropriateness of dIsciplme and its extent. . The request is ~'Ufficlently particularized, and IS arguably relevant . The request is neither broad nor a fishing expedition . There is no undue prejudice to the Employer . Employees are allowed to view their persorme1 file ou l'equest . ProductIon of documents under the current CollectIve Agreement need not as In earlIer versions, be ordered under subpoena duces tecllm but may be ordered by application of the Collective Agreement. !v1r Boardi , for the Employer, submitted that the Employer recogrnzes and supports the considerations behind the need for full disclosure, and, for that reason, it is willing to supply the Grievor with full partJ.culars. However~ in this case, he stated, the Employer takes the positIon that the re.quest for the entire personnel file 15 ur..reasonable. There has, he submitted, been no request for particular documents within the file, or for particular classes of documents, rather, the request is for the entire personnel file. As the personnel file contains an employee's entire work history, the Employer, while conceding that the test is "arguably relevant", takes the position that the majority of the documents in the file do not meet the test of "arguably relevant" in the context of suspension for Wlsafe driving and inaccurate report writing. The Employer disagrees WIth the Uwor..' s posiuon that there 1S no prejudIce to the Employer in bemg ordered to provide the entire personnel file It takes the positIon that should the photocopying of entire personnel files, become routine and be done for every grievance, t1.ere is a cost to t..lte Employer in staff time and photocopYing costs. When these costs are weighed agamst the benefit aclueved by the Gnevor, there 15 no benefit to the Grievor that could not be achieved by srmplv givmg some indication of the type of document reqwred. The Umon could 2 --,. name certain types or classes of docwnents which the Employer could then provide or, the UIUon could view the file and select and copy the docwnents whIch are needed for the case of the Grievor Mr Boardi recognized that tlus potentially could be the entIre file. Furtht::r, the Employer has made it clear that "It dld not rely on anything from the Grievor s file in imposmg the disclplme a:s It believed, and still IS of the opullon that the eVidence WIll show the acts b) themselves justify the dIscipline which was imposed. Mr Boardi acknowledged that documents showing discipline, commendations and length of servl.ce would be relevant to the Board s consideration of mitigation and is willmg to provide all of these documents and any other class of documents that the Union requests in order to make its case Mr Holmes stated in reply that the offer extended to him. as Counsel, while welcome, would Involve the inconvemence and cost of having Union Counsel from this day forward, going to the various institutions or having the me brought to him or her The end result would be that the ftle is provided, Counsel takes a look and determines which are relevant to be presented to the Board. He stated that he had no idea whether a number of leaves has been requested, or if the Grievor' s history of time-off, or of his history of leaves and illness which could have played a role. The only way for him to assess that, Mr Holmes submitted, IS to have the same documents 10 his possession as the Employer He added that the flrst trip through a set of documents does not always reveal to Counsel the potentlal impact and tlus impact may only become clear, for Instance, when the Arbitrator asks a question, If during the: hearing he leads something, the Employer can object to the adnrissibility oft.lte particular document and if the Board rules that the particular document is admissible, the Employer has a further opportunity in argwnent to speak to the document's relevance and the weight which should be grven to it. The request, he maintamed is not unusual and is generally met. 3 Decision The Board consIdered the submIssions of the parties and the cases offered and rendered an oral decision It had been noted previously that an order for productIOn of documents dId not preclude objections to the adnllssibJ1Jtv of particular documents durmg the heanng. ProduClteo of the Gnevor's persolli'lel file was ordered and the folloWIng reason:s were given. . In reviewing the file, the dIscipline decision-maker while he may not have consclOusly relied on any partlcular document, but he could. nonetheless, have been influenced by some of the contents oft.h~ p~rsonn~l file. . The Umon has a right to make reference to the Grievor's total work history in order to make its mltlgation argument. . It 15 reasonable to include the Grievor's personnel file under the nIbnc of "fu11 disclosure" referred to In Artlcle 22.14.5, supra. of the CollectIVe Agreement. . The criteria in West Park Hospital have been satisfied, that is, the request is arguably relevant, It IS sufficIently partlcular to overcome an)' dIspute about wbat is desired, tt'le reasons provided do not lead to a conclUSIon that the Umon IS on a "fishing expedItion". there is a clear nexus between the information requested and the positions in dispute. and the cost entailed in providing photocopies of the file do not, in the scheme of things, constitute undue hardship to the Employer This decision should not be mterpreted to mean that each and every t1IIle there is a gnevance that It IS appropnate for the entire personnel file of the Grievor to be produced. A dIfferent set of circumstances could result in a different conclusion. However. for the circumstances of this particular case, the Board has concluded that the Employer should produce for the Dmon, well before the next hearing date, a copy of the Grievor's entire personnel file. D_red_t, ~~~ ~~ - H.S' Finley Vice-chalr 4JZ :21> I J5f' 4