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HomeMy WebLinkAbout2000-1390.Simon et al.01-05-17 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1390/00 UNION# 01A015 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (SImon et al) Grievor -and- The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE Loretta Mikus Vice-Chair FOR THE GRIEVOR Arleen HuggIns Koskie Minsky Bamsters & SOlICItorS FOR THE EMPLOYER Stephen Patterson, Counsel Legal ServIces Branch Management Board Secretanat HEARING Apnl 9 2001 2 AWARD On August 18 1999 Mr Anthony Weekes, Mr Anthony SImon and Mr Mark Gamck filed two group gnevances allegIng the Employer had vIOlated artIcle 9 and 3 of the collectIve agreement. ArtIcle 3 reads as follows NO DISCRIMINA TION/EMPLOYMENT EQUITY 3 1 There shall be no dISCnmInatIOn practIsed by reason of race, ancestry place of ongIn, colour ethmc on gIn, cItIzenshIp creed, sex, sexual on entatIOn, age, mantal status, famIly status, or handIcap as defined In sectIOn 10(1) of the Ontano Human RIghts Code (OHRC) 32 There shall be no dISCnmInatIOn or harassment practIsed by reason of an employee's membershIp or actIvIty In the Umon. 33 It IS recogmsed that In accordance wIth sectIOn 14 of the ORHC the Employer's employment eqUI ty program shall not be consIdered a contraventIOn of thIS artIcle ArtIcle 9 IS entItled HEALTH AND SAFETY AND VIDEO DISPLA Y TERMINALS The relevant subsectIOn of that artIcle IS 9 1 whIch reads as follows 9 1 The Employer shall contInue to make reasonable provIsIOns for the safety and health of the employees dunng the hours of theIr employment. It IS agreed that both the Employer and the Umon shall co-operate to the fullest extent possIble In the preventIOn of accIdents and In the reasonable promotIOn of safety and health of all employees The Issue raised In these gnevances IS an alleged prolonged systemIc dISCnmInatIOn, harassment, antI-umon ammus and pOIsoned work envIronment of the Employer Dunng the first few days of the heanng Into thIS matter the partIes exchanged partIculars, In part as the result of an earlIer rulIng of thIS Board, and engaged In settlement dIscussIOn. In fact, two of the gnevors reached a resolutIOn of theIr gnevances, namely Anthony SImon and Mark Garnck. There are, however several outstandIng prelImInary matters I have been asked to rule 3 on before the next day ofheanng Into the remaInIng gnevances ofMr Weekes SpecIfically the Employer asks thIS Board to lImIt the matter before It to IncIdents that occurred In the context of hIS posItIOn WIthIn the probatIOn and parole branch of the Mimstry of CorrectIOnal ServIces It takes the posItIOn that thIS Board should not consIder the allegatIOns of dISCnmInatIOn generally throughout the Mimstry or In the context of ItS correctIOnal facIlItIes It also submIts that It has not been provIded wIth sufficIent partIculars to prepare ItS case and seeks an order for more partIculars about the specIfic allegatIOns the Umon Intends to rely on In purSUIng thIS gnevance DealIng first wIth the request for further partIculars, the Employer relIes on a GSB decIsIOn of ArbItrator Gray (Damani and the Ministry of Health, 1999 GSB # 158195) In whIch the Board ordered the Employer to "provIde employer counsel wIth the wntten partIculars of the facts that It and the gnevor say demonstrate the dISCnmInatIOn alleged. With respect to each act or omISSIOn alleged, the umon partIculars shall IndIcate what was done or not done when, where, by what means and by whom The umon shall also provIde partIculars wIth respect to the gnevor's 3 month sIck leave In 1995 and the connectIOn between It and the alleged dISCnmInatlon" WhIle I accept that as an accurate descnptIOn of what should be expected by way of partIculars, I am mIndful of the comments made by that same arbItrator In an earlIer award (Re Thermal Ceramics, Division of Morganite Canada Corp. And United Steelworkers 1993 32 L AC (4th) 375) In whIch he stated, at page 380 The legIslature has left It to the arbItrator charged wIth decIdIng a collectIve agreement dIspute to Judge whether and to what extent there should be any pre- heanng exchange of InformatIOn. In my VIew one of the consIderatIOns to be taken Into account In makIng that Judgement IS the possIbIlIty that an order Intended to expedIte the heanng and dISposItIOn of the matter may have the OpposIte effect. Once there IS an order compellIng a party to do somethIng It has not agreed to do there IS then the possibIlIty of dIsputes about what the order means, how It applIes to unantIcIpated cIrcumstances, whether It has been complIed wIth and what the consequences of non-complIance should be The resolutIOn of such dIsputes may consume the very heanng tIme and expense whIch the order was Intended to save, and more, wIthout advancIng the resolutIOn of the underlYIng dIspute even as much as It would have been had there been no order That wIll not always be so but It IS a nsk whIch must be weIghed agaInst the possIble benefits of a more structured and onerous preheanng dIsclosure process 4 It IS my VIew that the concerns expressed above apply In the Instant case There has already been a volumInous exchange of documents whIch has Included enough InformatIOn about the alleged IncIdents and the partIes Involved In those IncIdents for both partIes to proceed wIth the heanng. There has been one order for productIOn whIch became the prelImInary subJect at a subsequent heanng. I am concerned that another order of productIOn would result In sImIlar dIsputes, detract from the ments of the case and result In further delays As well, I am not prepared to examIne every descnptIOn of every allegatIOn to determIne whether more InformatIOn should be forthcomIng. The partIes themselves are In the best posItIOn to know what IncIdents they Intend to rely on, where and when they occurred and who was Involved. It IS In theIr Interest to ensure the efficIent and expedItIOus progress of thIS heanng by exchangIng sufficIent InformatIOn that adJournments and delays dunng the heanng wIll be aVOIded. Any faIlure to provIde these partIculars wIll result In aVOIdable delays and are clearly not In the best Interests of eIther party or In partIcular the gnevor In thIS partIcular case, the Umon has provIded the Employer wIth detaIls regardIng specIfic IncIdents concermng named IndIVIduals The Employer on the basIs of that InformatIOn, has advIsed several management personnel about theIr nght to partIcIpate In thIS heanng and respond to those allegatIOns The Employer IS seekIng more partIculars about the specIfic remedy beIng sought In these cases The Umon has advIsed the Employer In general terms that It IS seekIng some dIscIplInary actIOn agaInst these named IndIVIduals The actual remedIes sought wIll become a feature of the cloSIng arguments and It IS not essentIal that the Employer know the Umon's posItIOn at thIS stage of the proceedIngs At the last day of heanng some addItIOnal requests for productIOn and partIculars were made that the partIes were to attempt to answer based on the dIscussIOns at the heanng. If there are addItIOnal documents or InfOrmatIOn In the posseSSIOn of eIther party that should be exchanged before the heanng, the partIes are dIrected to do so as soon as possIble after receIpt of thIS award. Any further requests for productIOn and partIculars wIll be dealt wIth dunng the heanng and as 5 they anse It IS hoped there wIll be lIttle or no need for adJournments dunng the proceedIngs as a result of the faIlure of one party or another to honour the spmt of thIS award. DealIng wIth the remaInder of the Employer's submIssIOns In the order they were presented, the next Issue IS the charactenzatIOn of the gnevance as group gnevances rather than IndIVIdual gnevances It IS the posItIOn of the Employer that the IncIdents relIed on by the gnevor are personal and IndIVIdual In nature and are more appropnately the subJect of an IndIVIdual gnevance The collectIve agreement states as follows 22 11 GROUP GRIEV ANCE 22 11 1 In the event that more than one (1) employee IS dIrectly affected by one specIfic IncIdent or cIrcumstance and such employees would be entItled to gneve, a group gnevance shall be presented In wntIng by the Umon sIgned by such employees to the semor human resources representatIve at Stage Two wIthIn the tIme lImIts as specIfied In ArtIcle 22.2 1 Up to three (3) gnevors of the group shall be entItled to be present at all Stages unless otherwIse mutually agreed. The Employer obJects to the form of the gnevance, not the substance It concedes that Mr Weekes can proceed wIth the allegatIOns set out In hIS partIculars, but as an IndIVIdual gnevor and not as part of a group The sIgmficance of thIS obJectIOn becomes clear when one remembers that the other two gnevors, Mr SImon and Mr Garnck, settled theIr dIfferences wIth the Employer and wIthdrew theIr gnevances These gnevances were filed In 1999 by three employees allegIng systemIc dISCnmInatIOn, harassment, antI-umon ammus and pOIsoned work envIronment. At the tIme no obJectIOn was made wIth respect to the form of the gnevances It clearly Involved allegatIOns of specIfic acts or omIssIOns by three members constItutIng a group It IS too late now for the Employer to take Issue WIth the form of the gnevance as It was ongInally filed. If It had an obJectIOn to the gnevances It should have raised It at the tIme It was gOIng through the gnevance procedure It dId not and ItS faIlure to do so at that tIme must be seen as a Waiver of any obJectIOn to the group gnevance 6 However at the present tIme, It IS equally clear that the gnevances are no longer a group gnevance by vIrtue of the fact that two of the three gnevors have wIthdrawn theIr gnevances Mr Weekes gnevances now stand alone and hIS gnevances must proceed on theIr own ment. The allegatIOns he Intends to rely on have been set out In the partIculars that have been provIded by the Umon. The sIgmficance of thIS rulIng IS found In the next posItIOn of the Employer concermng the scope of the gnevances before me It claims that the totalIty of the allegatIOns raised by Mr Weekes occurred dunng hIS employment In the probatIOn and parole department of the Mimstry The substance of the allegatIOns centre around the alleged negatIve treatment he suffered at the hands of hIS manager In probatIOn and parole Any allegatIOns concernIng the correctIOnal facIlItIes are outsIde of the scope of thIS gnevance and should not be entertaIned by thIS Board. WhIle Mr Weekes has been employed by the Mimstry as a CO at the Metro Toronto East CorrectIOnal Centre (TEDC) SInce 1983 In 1990 he receIved a temporary assIgnment to the Don Mills ProbatIOn and Parole Office as a ProbatIOn and Parole Officer (PPO 1) When that assIgnment ended In September of 1991 he returned to TEDC as a C02 untIl November when he receIved a temporary assIgnment to the Ontano Human RIghts CommIssIOn. When that assIgnment expIred In January of 1992 he was gIven, through a memorandum of settlement, a permanent placement at Scarborough West ProbatIOn and Parole Office as a ProbatIOn and Parole Officer On or about February 1999 Mr Weekes receIved a temporary assIgnment as a SystemIc Change FacIlItator untIl June when he returned to hIS posItIOn at Scarborough West ProbatIOn and Parole Office Early In June of 2000 the gnevor was transferred to the Don Mills ProbatIOn and Parole office as a PP02 where he contInues to the present day The Employer takes the posItIOn that all of the allegatIOns raised by Mr Weekes refer to the ProbatIOn and Parole Offices he has worked In for the past ten years and that thIS heanng should not entertaIn eVIdence about IncIdents that happened to other employees In the correctIOnal 7 facIlItIes of the Mimstry It submItted that thIS sImIlar fact eVIdence IS beIng offered solely to prove that persons In the employ of the Mimstry have a propensIty for engagIng In sImIlar conduct. The preJudIcIal nature of that eVIdence would far outweIgh any probatIve value It mIght have and for that reason should not be admItted. It also takes the posItIOn that gIven the penod of tIme that has elapsed SInce the gnevor worked In any correctIOnal facIlIty any eVIdence offered concernIng events In those facIlItIes would be too remote for thIS Board to consIder The correspondence between the partIes' sets out In detaIl the IncIdents the gnevor Intends to rely on as examples of racIal dISCnmInatIOn, harassment, antI-umon ammus and pOIsoned work envIronment. That has been and contInues to be the basIs of the gnevor's case Some of those allegatIOns Include matters raised whIle he was a SystemIc Change FacIlItator others whIle he was a PP02 In the ProbatIOn and Parole department. It IS dIfficult to know at thIS stage of the proceedIngs whether hIS eVIdence wIll Include IncIdents that relate to the correctIOnal facIlItIes I am not prepared at thIS tIme to rule on the admIssIbIlIty that hIS eVIdence on these allegatIOns IS to be lImIted to a specIfic tIme or locatIOn. If the eVIdence IS found to be relevant and admIssIble, ItS weIght IS a matter for argument. The Issue In thIS case IS an allegatIOn of a prolonged and systemIc dISCnmInatIOn, harassment, antI-umon ammus and pOIsoned work envIronment. It IS the very nature of the gnevance that reqUIres a full heanng Into the acts or omISSIOns alleged to have occurred. SystemIc dISCnmInatIOn does not necessanly consIst of sImIlar acts of mIsconduct but rather a senes of acts or omISSIOns on the part of people who represent the workplace that, In theIr totalIty can be shown to contribute to or conversely fall to prevent the acts alleged. If It was reqUIred to meet the test of sImIlar fact eVIdence, It would be very dIfficult to prove that the system Itself IS the problem and not Just IndIVIduals wIthIn the system To adequately evaluate the claims of the gnevor the entIre system IS open for reVIew and If It ultImately leads to an Inference of a systemIc problem, It wIll do so on the basIs of the eVIdence provIded. The Issue of sImIlar fact eVIdence has no beanng on thIS Issue 8 HavIng said that I stress that what I now have before me are the IndIVIdual gnevances of Anthony Weekes ThIS heanng began as a group gnevance but, SInce two of the three gnevors have wIthdrawn theIr gnevances, I am left wIth only the gnevances of Mr Weekes WhIl e I have stated prevIOusly that It would be premature for me to make eVIdentIary rulIngs out of the context of the heanng, I must also express some concerns about the scope of the eVIdence the Umon has suggested It mIght rely on to prove ItS case ThIS was not Imtlally framed as a polIcy gnevance affectIng all members of the bargaInIng umt. It concerned, In essence, three IndIVIdual gnevors' allegatIOns that were to be dealt wIth as a group concern. The fact there were ongInally three gnevors would have reqUIred any eVIdence concernIng these gnevors be relevant to theIr gnevances and allegatIOns In the same way eVIdence Into the IndIVIdual gnevances of Mr Weekes must be relevant to hIS allegatIOns ThIS IS not an InqUIry Into the workplace Itself but rather Into how the workplace has treated Mr Weekes I trust thIS wIll gIve sufficIent gUIdance to the partIes to allow us to proceed wIth the heanng Into the ments on the days scheduled. Dated at Toronto thIS 1 ih day of May 2001 ~ . . . .. . .. . .. .. :" 1>- . Loretta Mikus, Vice-Chair