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Home My WebLink About1997-1378TEFOGLOU98_04_02 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 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/TELECOPIE (41~) 326-139(5 GSB # 1378/97,1716/97,1717/97,1719/97 OPSEU # 97E179, 97G146, 97G147, 97G149 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Tefoglou) Grievor - and - The Crown In RIght of OntarIO (Mimstry of the SolICItor General and CorrectIonal Services) Employer BEFORE R.H. Abramsky Vice-ChaIr FOR THE E Holmes UNION Counsel Ryder WrIght Blair & Doyle Bamsters & SohcItors FOR THE L WillIams EMPLOYER StaffRelatrons Officer Mimstry of the Sohcltor General and CorrectIonal Services HEARING March 26, 1998 PRELIMINARY ORDER At the start of the hearIng, a prelIminary motIon for production of documents was made by the Ulllon. SpeCIfically, the Uruon seeks a copy of the grIevor's entire personnel file from the Employer under ArtIcle 22 14 5 of the collectIve agreement. That provIslOn prOVIdes as follows The parties agree that at the earhest stage of the grievance procedure, eIther party upon request IS entitled to receIve from the other, full dIsclosure On March 3, 1998, In preparatIon for the hearIng, the Umon sought, among other thmgs, a copy of the "GrIevor's personnel file m Its entIrety" On March 17, 1998, the Employer dellled that request, but offered to proVIde a copy of the file to counsel's office so that counsel could reVIew It and copy the documents he deternuned to be relevant to the gnevor's case. The UnIon s rejection of that offer led to the prehrrunary motlOn at Issue here There are five gnevances at Issue In trus case, two ofwruch Involve suspenslOns of the gnevor - a two-day suspension and ten-day suspenslOn. The UnIon argues that the grIevor's personnel file was relIed upon by the Employer m deternunmg the approprIate level of dISCIplIne and consequently ItS request for the file meets the tradItIonal five CrItena for the productIon of documents as outlmed In Re West Park Hospital and O.N.A. (1993), 37 L A. C (4th) 160 (Knopf), as quoted In Re Children s Aid Society of City of Belleville, Coun!), of Hastings and City of Tre1110n andC. UP E. Loca12197 (1994),42 L A.C (4th) 259 at 262 2 (BrIggs) Those five cntena are that the requested mformatIon must be (1) arguably relevant, (2) partIculanzed clearly to aVOId later dIsputes, (3) cannot be a "fishmg expedItIon", (4) must be clearly connected to the dIspute at hand and (5) the productIOn of the mformatIon requested should not cause undue prejUdICe The Uruon submrts that the gnevor's personnel file IS "arguably relevant" to the Issue of the appropnateness of the penalty and whether the Board should exerCIse ItS dIscretIOn to SubstItute a lesser penalty It submIts that the request IS suffiCiently partIcularIzed, that It IS not a "fishmg expedItIon", and that the grIevor's personnel file IS clearly connected to the dIspute at hand. The Uruon further contends that the cost of copYIng the file IS not suffiCIently prejudicIal so as to counter the reqUIrement of full dIsclosure as reqUired by the collectIve agreement. In the UnIon's VIew, the Employer's offer to reVIew the grIevor's personnel file and copy what It chooses, then return It IS InSUffiCIent and slufts the burden onto the Uruon and the gnevor to undertake a reVIew of the documents and to photocopy them. It submIts that what mIght not appear to be Important or even relevant dunng an InItIal reVIew mIght later turn out to be lughly relevant In that CIrcumstance, If the Umon dId not copy the document at the outset, ItS abilIty to present a complete case would be prejudIced. It further submIts that a precedent should not be set that "full dIsclosure" IS satIsfied by merely sendmg over the documents for reVIew and copYIng. The Umon further argues that there IS a rIsk that files mIght be lost or otherwIse damaged If personnel files leave the InstItutIon for reVIew, and that 3 on balance, It IS easier for the file to be copied and then sent to the UnIon. In support of ItS contentIons, the UnIon cites to OPSEU (Kumor) and Mmistry of the Solicitor General and Correctional Services, GSB No 1698/96, a very recent decIsIOn by Vice ChaIr Helen Finley The Employer contends that It has not refused dIsclosure and submIts that not all of the documents In the personnel file are "arguably relevant" so that It should not be requIred to photocopy the entire file It further contends that the Employer dId not rely on the dISCIplinary record of the gnevor when It Issued the two suspensIOns, but on the mIsconduct Itself The Employer also contends that while some personnel files may not be onerous to copy, some may be 4 Inches truck or more and It would be hIghly Inconvement If, In every case, It were requITed to copy the entire file It submIts that ItS offer of sendIng the UnIon the file for ItS reVIew IS suffiCient disclosure and If the Umon IS concerned that It might miss some document that mIght later prove relevant, It can copy the entire file Decision In OPSEU (Kumor) and Ministry of Solicitor General and Correctional SenJices, GSB No 1698/96 (Finley, Vice ChaIr), the Identical Issue arose That case Involved two disciplinary suspenSIons and, as here, the Umon sought to have a copy of the gnevor's entIre personnel file The Employer refused, contending that the entire personnel file was not relevant and that the Umon could reVIew the file and IdentIfy wruch documents It sought to have COpied. Based on the fact that the dIscipline deCISIon-maker may have been Influenced by the contents of the personnel file, that the Umon had a rIght to make reference to the 4 grIevor's total work hIstOry In order to make Its mItIgatIon argument, and the fact that the cntena set forth in West Park Hospital supra, had been met, Vice-Chair Finley ordered productIon of the gnevor's personnel file She noted, however, that the "deCISIon should not be mterpreted to mean that each and every tIme there IS a grIevance that It IS appropnate for the entIre personnel file of the Gnevor to be produced. A different set of circumstances could result In a dIfferent conclusIOn." (DeCISIon, p 4) Given the sImilanty between the case at Issue here and In Kumar, I conclude that I am reqUIred to follow that deCISIon In accord WIth E. Blake et al. and Amalgamated Transit Union, GSB No 1276/87 et al (ShIme, 1988) As Vice-ChaIr Finley cautIOned, however, each case turns on ItS facts and there may be tImes when the reqUIrement of "full dIsclosure" may be satisfied Without photocopymg all of the documents requested In Re Children's Aid Society supra, where there was concern that the documents requested were qUIte volumInous, ArbItrator BrIggs ordered that the employer prOVIde the other SIde WIth access to the InformatIOn and then, If requested, proVIde a copy of the requested documents to the Uluon. She explaIned that "[i]n part, It IS my IntentIon that thIS will curtail the reproductIon of unnecessary volumes ofmformatIOn." (42 L A.C (4th) at 270) In thIS case, there IS no assertIon that the gnevor's personnel file IS too volumInOUS to copy (only that some files may be very large) and consequently, conSIstent WIth Kumar, the Employer IS ordered to produce for the Uruon, well before the next hearIng date, a copy of the grIevor's entire personnel file It IS so ordered 5 Issued thlS 2nd day of April, 1998, In Toronto, Ontano ~ ff Rand Hammer Abramsky, Vic aIr 6