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HomeMy WebLinkAbout2010-2654.Pacheco.17-06-21 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2654 UNION#2010-0234-0283 Additional grievances noted in Appendix “A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pacheco) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel HEARING CONFERENCE CALL June 2, 2017 June 5, 2017 - 2 - Decision [1] I have before me four discipline grievances filed on behalf of Mr. J. Pacheco. There is a grievance dated February 12, 2015, which challenges a 10-day suspension issued on February 6, 2015. There is a grievance dated May 29, 2015, challenging a 15-day suspension issued on May 25, 2015. There is another grievance dated December 7, 2015, challenging a 20-day suspension issued on December 7, 2015. And finally, there is a grievance dated March 3, 2016, challenging the March 2, 2016 termination of Mr. Pacheco’s employment. Some hearing days have been held but there continue to be a number of outstanding issues relating primarily to the production of documents and to a lesser extent to the sufficiency of particulars. These outstanding issues were canvassed before me by counsel on June 2, 2017, at the GSB, and during a conference call on June 5, 2017. I will address some of the issues that were the subject of argument on those dates. There are some outstanding issues which the parties will still attempt to resolve themselves. For example, Union counsel advised that he would still need some time to review with his side some of the production requests made by the Employer and the Employer side continues to search for some documents requested by the Union. There is also a significant dispute about what can be described as the IT issue that I will not be addressing at this time. It is for these reasons that this decision will address only some of the unresolved issues about production and particulars. [2] I do not intend to review the legal principles governing disclosure in detail. I simply note that the test for the production of documents is arguable relevance. The documents sought must have some relevance to the issues in dispute between the parties. Each side is also entitled to written particulars of the material facts upon which the other party intends to rely in support of its case. However, a party is not entitled to a description of the evidence the party opposite intends to call to prove any of its allegations. I have relied on these basic principles in addressing the unresolved issues now before me. - 3 - [3] As the parties were attempting to resolve the disclosure issues, Union counsel prepared summary status lists of the issues. The latest list is dated May 30, 2017, and consists of 8 pages. In dealing with the unresolved disclosure issues before me, counsel and I reviewed the issues in the order they appeared on the May 30, 2017 list (“the List”). I will follow this same approach in addressing those issues now before me. I will start at page 1 of the List and refer to the issues that I will address by their number (or amended number) on the List. As I advised the parties at the hearing, I will address the issues in a concise manner given the short time until the next hearing date. Union Disclosure Requests 10-Day Suspension [4] My determinations or comments on the matters relating to the 10-day suspension are as follows. 1. The Union is seeking written confirmation of the date, time and computer location for Mr. Powis’s completed occurrence report (“OR”) considered in the WDHP complaint. I am satisfied that the Employer is not obliged to provide this information. 11. The Union seeks ORs for the incidents set out at paragraph 11 of the list dated December 22, 2016. The Employer takes the view that at least some of these ORs are not relevant. Having regard to the allegations made by the Union, particularly its contention of discriminatory treatment of Mr. Pacheco, I am satisfied that the requested ORs are arguably relevant. The Employer is directed to provide the requested ORs in its possession to Union counsel as soon as reasonably possible. 12. The Union seeks the email from Mr. Hamel to Bailiff management dated on or around January 23, 2012, with the heading “Complaint against other officers”. The Employer is directed to provide this email to Union counsel as soon as reasonably possible. 13. The Employer confirms that there are no other notes or records of conversations kept or recorded by Mr. Watson between or in reference to Mr. Pacheco in March 2014, other than the note provided. 15. The Employer confirms that it is not aware of the existence of Offender Transportation Operations correspondence with the Ministry of Labour in relation to the complaint filed by Mr. Pacheco on April 22, 2014. Jan. 28 list – 10. The Employer confirms that it could not locate Mr. Powis’ time - 4 - sheet for March 20, 2014. March 24 list – 3. The Employer confirms that it is unaware of who scribbled notes in the margins of the relevant WDHP draft reports. 15-Day Suspension [5] My determinations or comments on the matters relating to the 15-day suspension are as follows. 1. (i) The Employer confirms that the Union has received all ORs, notes and correspondence in the possession of the Employer relating to the insubordination incident. (ii) The Employer confirms that it cannot assist the Union with respect to the requests in item 1. (iii) The Employer confirms that it has provided the Union with all of the phone records covering both offices requested by the Union. 6. The Employer confirms that it has provided all the documents in its possession relating to the voice message Mr. Murphy left at CECC. Jan. 28, 2017 – 4. The Employer confirms that the OR allegedly prepared by Mr. Murphy never existed and that it certainly does not have such an OR. March 24, 2017 – 4. The Employer confirms that it only has one transfer list for the Willey/Pacheco eastern assignment trip on April 28, 2015, and that it provided this list to the Union. 20-Day Suspension [6] My determinations or comments on the matters relating to the 20-day suspension are as follows. 1. The Employer undertakes to ask Mr. Mizzi for the Sony software and the original audio, and to provide it to the Union if they are available. 3. The Employer confirms that the Union has been provided with all ORs or similar notes relevant to the 20-day suspension. 4. The Employer confirms that the Union has been provided with all of correspondence between the MHCC Security Unit, CSOI, Mr. Dykstra, Ms. Jones - 5 - and /or Mr. Watson relating to the issues of May 11 and 25, including those referring directly or indirectly to Mr. Pacheco. 6. I note that the Employer will look into this item. 7. and 8. The Union will seek instructions on these items. 9. With respect to what I heard about this matter on June 2, 2017, and what I saw in the email exchange subsequent to the conference call, including Mr. Brewin’s email dated June 8, 2017, it is my understanding that the Employer confirms that it has provided the Union with all of the requested items in its possession. To the extent the Union asserts that it did not receive certain documents, the Employer confirms that it has sent the Union what it has. 13. The Employer believes that it sent to the Union the requested phone records of Mr. Pacheco, but it will check to see if those phone records included the dates of May 11 and 12, 2015. Jan. 28, 2017 (Addendum) 1. The Employer confirms that a September 2015 memo from Regional Manager Serre directing that RTC keys were not to be taken on the road did not exist. 2. The Employer confirms that the logbook has not been located and that it sent to the Union what it has relating to the other items (other than the keypress info) requested in this paragraph. 5. and 6. The Employer confirms that if the documents requested by the Union in these paragraphs were not included in what the Employer sent to the Union on May 23, 2017, then the documents do not exist. 7. The Union has requested certain legal transfer orders. The Employer maintains that it cannot disclose these transfer orders without a direction to do so. The Employer maintains that it gave the Union certain redacted lists that provide the Union with the substance of the information it requested. I agree with the position the Employer has taken on this issue. 8. The Union requests certain documentation for trips late in 2016 that took place many months after Mr. Pacheco’s employment had been terminated. I am satisfied that these documents and the events they deal with are not arguably relevant to the issues that arise from Mr. Pacheco’s grievances. March 24, 2017 (Addendum 2) 6. The Union has requested certain documents relating to overtime worked by Mr. Bozzelli and Mr. Murphy on May 4, 2015. The Employer is directed to provide the overtime payroll sheets and the logbook entry relating to the overtime - 6 - that these two employees worked on May 4, 2015. 7. The Employer confirms that there were no ORs from Mr. Willey and Mr. Chmurzynski re June 24, 2015. 8. The Employer confirms that there is no correspondence between Inspector Mizzi and Bailiff management re OTO policy violations. 9. and 10. The Union requests certain documentation that was part of a CSOI investigation into what can be described as the eastern region bailiff issues. These issues were resolved between the parties by confidential Minutes of Settlement. I am not satisfied that the requested documents are arguably relevant. 12. The Employer agrees, if it can find the material, to produce the requested documentation for Mr. Willey’s and Mr. Chmurzynski’s trip or trips on June 24, 2014. 13. The Employer confirms that there is no written policy on the taking of breaks and lunch during a shift. 14. If it exists, the Employer is directed to give to Union counsel an OR Mr. Watson wrote on June 3, 2015, about the sprinter #4 logbook being missing. Termination [7] My determinations or comments on the matters relating to the termination of Mr. Pacheco’s employment are as follows. 7. The Employer confirms that there are no notes or minutes taken of a meeting which the Union alleges took place at about 11:00 a.m. on January 21, 2016. 8. The Union requests certain IT information relating to Mr. Pacheco’s use of a computer on January 1, 2016. The Employer confirms that it has given the Union the information that was available and that it does not save log-in information. 11. The Employer is directed to provide all ORs and emails re Mr. Chmurzynski’s February 26, 2016, allegation against Mr. Murphy to Union counsel as soon as reasonably possible. Jan. 28, 2017 (Addendum) 7. The Employer is directed to provide the video and the relevant OR relating to the altercation between Mr. Powis and Mr. Hamel on February 23, 2015, to Union counsel as soon as reasonably possible. 8. and 9. The Employer confirms that it will provide the requested documentation - 7 - (Jan 13, 2016, for Mr. Murphy, Mr. Powis and Mr. Fisher) to Union counsel once it receives the material. March 24, 2017 (Addendum 2) 22. and 23. The Employer confirms that the ORs referenced in these paragraphs regarding January 21, 2016 interactions with Mr. Powis never existed. 25. The Employer confirms that it does not have the video referenced in this paragraph. 26. The Employer confirms that it does not have any handwritten notes relating to the interviews Mr. Dunscombe conducted on February 1, 11 and/or 12, 2016, with Mr. Pacheco, Mr. Powis, Mr. W atson, Mr. Bozzelli and Mr. Murphy. 28. The Employer confirms that Ms. Framklovitch did not take handwritten notes during her interview of Mr. Pacheco. 29. The Union requests performance appraisals for a number of Bailiffs for the years from 2008 to 2016. The Employer is directed to provide any performance appraisals for Mr. Powis, Mr. Bartlett, Mr. Hamel, Mr. Bozzelli and Mr. Pacheco for the years from 2013 to 2016, to Union counsel as soon as reasonably possible. 30. I am not satisfied that the records the Union identifies in this request are arguably relevant. 31. I am also not satisfied that statements made by Mr. Bozzelli and by Mr. Murphy to Ms. Solomon in relation to Mr. Powis’ first WDHP complaint involving Mr. Hamel are arguably relevant. 32. The Employer is directed to provide information about what was done by the company it hired to update the Bailiff keypress to Union counsel as soon as reasonably possible. 33. and 34. The Employer agrees to look into these matters and to provide the requested information to the Union if the information can be located. Employer Disclosure Requests [8] My determinations or comments on the matters relating to the Employer production requests are as follows. 1. The Union confirms that what it provided the Employer from the daycare provider regarding Mr. Pacheco’s sick child on April 28, 2015, is all that the - 8 - Union side has in its possession. 2. The Union will look into confirming the date and time relating to the screen shot. 3. The Union confirms that Mr. Pacheco does not now have the text message of April 28, 2015, from the daycare provider. Union counsel will enquire as to whether the text message ever existed. 4. The Union will attempt to get a clear shot of “original A” so that the year can be ascertained. 5. and 6. Union counsel will inquire further into the issue of the notes requested by the Employer. 7. 8. and 9. Union counsel will continue a review of these Employer’s requests. Dated at Toronto, Ontario this 21st day of June 2017. Ken Petryshen, Vice-Chair - 9 - Appendix A GSB Number OPSEU File Number 2012-0727 2012-0234-0066 2013-3214 2013-0234-0359 2014-0350 2014-0234-0061 2014-3305 2014-0234-0458 2014-3846 2014-0234-0508 2014-4854 2015-0234-0030 2015-0390 2015-0234-0058 2015-0494 2015-0234-0069 2015-0495 2015-0234-0070 2015-0496 2015-0234-0071 2015-0913 2015-0234-0085 2015-0914 2015-0234-0086 2015-0915 2015-0234-0087 2015-0916 2015-0234-0088 2015-1310 2015-0234-0108 2015-1311 2015-0234-0109 2015-1312 2015-0234-0110 2015-1313 2015-0234-0111 2015-1314 2015-0234-0112 2015-1315 2015-0234-0113 2015-1316 2015-0234-0114 2015-1317 2015-0234-0115 2015-1318 2015-0234-0116 2015-1319 2015-0234-0117 2015-1320 2015-0234-0118 2015-1321 2015-0234-0119