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HomeMy WebLinkAbout1999-1224.Pickett.04-03-30 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# 1999-1224 1999-1565 1999-1566 1999-1567 1999-2019 UNION# 99E122, 99D203 99D204 99D205 00A154 00A156 00A155 00A159 00A158 00A157 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (PIckett) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Damel Hams Vice-Chair FOR THE UNION John BrewIn Ryder Wnght Blair & Doyle Bamsters and SOhCItorS FOR THE EMPLOYER Len HatzIs Counsel Management Board Secretanat HEARING February 27 2004 2 DeCISIon The Proceedings These gnevances were tnggered by an mCIdent alleged to have occurred on May 23 1999 On March 18 2003 the umon was ordered to provIde further partIculars regardIng the folloWIng allegatIOns set out In paragraph 17 of Its letter dated November 8 2001 17 The actIOns of the management descnbed In paragraphs 9 to 15 were In part motIvated by a dISCnmInatory attItude towards Mr PIckett. Mr PIckett suffers from a form of cerebral palsy It causes hIm to notIceably hmp In the early stages of hIS employment at Metro East he expenenced sIgmficant hazIng from staff, IncludIng supervIsors He was led to beheve that many supervIsors dId not thInk he was capable of performIng hIS dutIes In the InstItutIOn. ThIS dISCnmInatory attItude was a factor m the dIscIple that was set aSIde by the panel chaired by Wilham Kaplan. In fact, Mr PIckett proved to be an excellent correctIOn officer After hIS reInstatement, Mr PIckett contInued to expenence negatIve attItudes from representatIves of the employer Others who were members of the classes set out In ArtIcle 3 1 of the CollectIve Agreement and the Ontano Human RIghts Code, also expenenced dISCnmInatIOn at the InstItutIOn, dISCnmInatIOn that management dId not deal wIth effectIvely There was also eVIdent bIas agamst those who exercIsed theIr nghts to gneve or otherwIse challenge management The umon responded on March 21 2003 wIth 16 paragraphs of partIculars relatIng to paragraph 17 above In those partIculars the umon adverted to three documents upon WhICh It would rely The employer subsequently obJected to those documents beIng admItted as eVIdence That Issue was dealt wIth In an Intenm decIsIOn dated February 5 2004 In the Interval SInce It dehvered ItS letter of March 21 2003 the umon has wIthdrawn paragraphs 1 2 and 5 The employer now seeks to have paragraphs 3 4 6 7 8 and 9 struck out as untImely allegatIOns 3 Submissions of the Parties The employer submItted that allegatIOns that are greater than three years old are Inherently preJudIcIal and the umon should not be able to rely upon such allegatIOns because theIr probatIve value IS outweIghed by theIr preJudICIal effect. Further by a decIsIOn of the GSB dated January 15 1996 Vice-Chair Kaplan reInstated thIS gnevor The employer here submItted that the allegatIOns of dISCnmInatIOn were, or could have been, put before the Board In those proceedIngs The Employer rehed upon OPSEU (Ross) and the Croltn in Right of Ontario (Ministry of the Solicitor General) GSB #2690/96 et al and OPSEU (Patterson) and the Crown in Right of Ontario (Ministry of Public Safety and Security) GSB# 2001-0925 et al As to the Kaplan decIsIOn, the umon submItted that no decIsIOn was made, or was reqUIred to be made, regardIng the allegatIOns of dISCnmInatIOn made here The umon summanzed the mstant allegatIOns as beIng that vanous actIOns taken agaInst the gnevor after May 23 1999 Included an element of dISCnmInatIOn agaInst the gnevor due to hIS phYSIcal handIcap and hIS actIvItIes on behalf of the umon. It seeks to rely on the earher events, WhICh mIght have been put before Vice-Chair Kaplan, to estabhsh actual dISCnmInatIOn, In order to Infer the element of dISCnmInatIOn In the post May 23 1999 events FInally the gnevor's losses anse from hIS absence due to stress-Induced Illness folloWIng the May 23 1999 IncIdent. The umon said that hIS entIre work expenence was relevant to the assessment of that claim. In reply the employer submItted that the Board's Junsprudence In Ross supra, and Patterson, supra, estabhshes that three years IS the rough cut-off pOInt for makIng such allegatIOns, and It asks that the same standard be apphed here 4 Reasons for Decision In my decIsIOn of February 5 2004 I specIfically dealt wIth the use to be made of the Kaplan decIsIOn (OPSEU (Pickett) and The Crown in Right of Ontario (Ministry of Correctional Services) GSB# 2251/93) That decIsIOn dealt wIth Mr PIckett's prevIOus termInatIOn of employment, dated November 26 1993 It remstated hIm effectIve January 15 1996 Mr PIckett returned to work and worked Just more than three years untIl the alleged IncIdent of May 23 1999 I have revIewed the Kaplan decIsIOn agaIn In the hght of the Issues now put before me It IS clear that the eVIdence of dISCnmInatIOn now sought to be put before me was put before the Kaplan Board at page 14 The gnevor also told the Board that he expenenced some hOStIhty when he first JOIned the correctIOnal servIce One officer told hIm that "ten years ago we would not have hIred someone hke you" ThIS attItude made the gnevor even more determIned to take on all the functIOns of the Job and to show that he could do It by respondIng to all codes Generally speakIng, the Issue ofMr PIcket's treatment because of hIS dIsabIhty was put before the Board, a final decIsIOn was rendered by the Board on the Issues before It and the partIes there and here are IdentIcal However the umon closely parses the reasons of the Kaplan Board and urges that SInce the Board neIther upheld nor dIsmIssed the dISCnmInatIOn allegatIOns, they are fresh Issues WhIch may be dealt wIth now In my VIew the Kaplan Board came to the conclusIOns It dId wIthout the need to make findIngs of fact on the dISCnmInatIOn Issues AccordIngly there IS no pnor ruhng upon WhIch the employer may estopp the umon from calhng eVIdence 5 However the allegatIOns sought now to be brought forward are, at theIr youngest, matters that arose before Mr PIckett was dIscharged In November 1993 I share the concerns raised by thIS Board In Ross and Patterson and both agree wIth and am bound by them. It should be noted that neIther case draws a bnght lIne of three years back beyond WhICh eVIdence wIll not be allowed. Rather the task IS to find a balance between probIty and preJudIce In these cIrcumstances, the hIatus In Mr PIckett's employment from November 1993 to January 1996 provIdes a sIgmficant breakIng pOInt In hIS expenences as an employee I find that hIS return to work on January 15 1996 IS the pOInt at WhICh eVIdence of dISCnmInatIOn achIeves the reqUIred level of probIty to permIt consIderatIOn of ItS admISSIbIhty EVIdence of prevIOus events IS InadmISSIble However thIS decISIOn must be read wIth the decIsIOn of February 5 2004 I note agaIn that Mr PIckett has SInce passed away Mr PIckett gave eVIdence, WhICh was tested, both before Vice- Chair Kaplan and the Ontano Human Rights CommIssIOn Board of InqUIry Relevant findIngs made there are admIssIble wIth theIr weIght to be determIned at the close of the case Dated ~t ror~mto thIS 39th day of March, 2004 . .. .\ .. 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