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HomeMy WebLinkAbout2001-0542.Wickett et al.04-04-22 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# 2001-0542,2001-0559 2001-0560 2001-0561 2001-0831 2001-0908 UNION# 01F478 01C400 01C401 01C402,01B275 01B298 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Wickett et al ) Grievor - and - The Crown In RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Don Eady PalIare Roland Rosenberg RothensteIn LLP Barnsters and SOlICItorS FOR THE EMPLOYER DavId Strang ActIng AssocIate DIrector Management Board Secretanat HEARING Apnl 20 2004 2 DeCISIon The gnevances before me concern the dIscharge of SIX employees for the Inappropnate use of the Employer's e-maIl system, contrary to Employer polIcIes Mr R. Nadeau, a gnevor testIfied on Apnl 14 and 15 2004 At the heanng on Apnl 20 the Umon called ItS last wItness and closed ItS case An Issue arose on that day wIth respect to certaIn reply eVIdence the Employer IndIcated It Intended to call on Apnl 29 2004 The Employer gave notIce that It Intended to call a wItness to contradIct some aspects ofMr Nadeau's testImony In order to dIscredIt Mr Nadeau's credibIlIty Dunng cross-eXamInatIOn ofMr Nadeau, counsel for the Employer dId not challenge those aspects ofMr Nadeau's testImony whIch the Employer now wIshes to contradIct wIth a reply wItness Counsel submItted that It would only be fair to permIt the Employer to call a wItness to contradIct Mr Nadeau's testImony so that I have the benefit of all relevant eVIdence In order to assess Mr Nadeau's credIbIlIty Counsel submItted that the Umon could recall Mr Nadeau If It decIded that It was necessary to do so and that the Employer would pay the Umon for the costs assocIated wIth hIS attendance Counsel for the Umon strenuously obJected to the Employer beIng permItted to attack Mr Nadeau's testImony In thIS way when It dId not alert hIm In some way dunng cross- eXamInatIOn that It dId accept as credible certaIn aspects of hIS testImony and when It dId not provIde hIm wIth an opportumty to explaIn hIS verSIOn of the events In counsel's VIew the faIlure of the Employer to comply wIth the rule In Browne v Dunn must preclude the Employer from attackIng Mr Nadeau's credIbIlIty by a wItness In reply Counsel argued that It would be unfair to Mr Nadeau and the Umon to permIt the Employer to challenge Mr Nadeau's credIbIlIty In thIS manner 3 After consIdenng the submIssIOns of counsel on thIS Issue, It IS my conclusIOn that In these CIrcumstances the Employer cannot be permItted to call a wItness In reply for the purpose of challengIng Mr Nadeau's credIbIlIty on matters whIch It dId not take Issue WIth dunng hIS cross-eXamInatIOn. GIven the matenal filed and some of the prevIOUS testImony It appears that the Employer should not have been entIrely surpnsed by what Mr Nadeau testIfied to In chIef If the Employer was surpnsed, It could have at least IndIcated as much and requested an adJournment. It appears that subsequent to heanng Mr Nadeau's testImony the Employer contacted hIS former supervIsor and on the basIs of InformatIOn then provIded now wIshes to call the supervIsor to challenge aspects ofMr Nadeau's testImony Mr Nadeau lIves In a relatIvely Isolated commumty In northern Ontano and reqUIres a day to travel to and a day to travel from Toronto Mr Nadeau currently has other employment. I agree wIth the Umon's posItIOn that It would be unfair to Mr Nadeau and to the Umon, apart from the Issue of cost, to permIt the Employer to call reply eVIdence to challenge Mr Nadeau's credIbIlIty In these CIrcumstances when It dId not comply wIth the rule In Browne v Dunn and It cannot provIde any JustIficatIOn for not dOIng so. The Employer certaInly IS entItled to call proper reply eVIdence It should advIse the GSB and counsel for the Umon If It Intends to do so on Apnl 29 2004 as soon as reasonably possIble