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HomeMy WebLinkAbout2001-0925.Patterson.03-12-01 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# 2001-0925 2001-0949 UNION# 01C606 01C621 01C622 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Patterson) Grievor - and - The Crown In RIght of Ontano (Mimstry of PublIc Safety and Secunty) Employer BEFORE Deborah LeIghton Vice-Chair FOR THE UNION Mary MacKInnon Barnster and SOlICItor FOR THE EMPLOYER Chnstopher Jodhan Counsel Management Board Secretanat HEARING October 29 2003 SubmIssIOn receIved November 3 2003 2 DECISION There are three gnevances before the board, two IndIVIdual gnevances of JulIe Patterson dated July 3 2001 allegIng, inter alia, dISCnmInatIOn and harassment and a group gnevance dated August 24 2001 allegIng dISCnmInatIOn of the female correctIOnal officers of the Sault St. Mane JaIl ThIS prelImInary decIsIOn addresses the employer's motIOn argued at the first day Into the heanng of thIS matter whIch, essentIally seeks an order from the board lImItIng the scope of the eVIdence, partIcularly requITIng the board to exclude eVIdence on allegatIOns whIch are older than one year before the gnevance was filed or before July 2000 The umon opposes the motIOn to restnct the scope of the eVIdence and takes the posItIOn that eVIdence on all the partIculars gOIng back as far as 1987 should be permItted to be tendered to the board. The partIes agreed to the folloWIng facts for the purposes of the motIOn 1) The gnevors have each filed gnevances In the past related to vanous Issues IncludIng gnevances wIth dISCnmInatIOn on theIr face 2) The gnevors raised theIr concerns both formally through gnevances and Informally through dIscussIOns wIth vanous management officIals, 3) The gnevors were unsatIsfied wIth the actIOns of management In regard to theIr complaInts and as such felt there was no pOInt In bnngIng new concerns to management; 4) The gnevors were also concerned about the "code" among officers that they should not "rat out" fellow officers Counsel for the employer argued referrIng specIfically to partIculars provIded by the umon that allegatIOns refernng back to IncIdents occurnng In 1987 and through to IncIdents occurnng In 2000 were not tImely The essence of hIS argument was that the employer would be preJudIced In respondIng to these allegatIOns and the preJudIce outweIghs the probatIve value of such eVIdence Counsel also argued that some of the allegatIOns and the partIculars put forward by the umon were not relevant to the pnmary Issue of whether or not the correctIOnal officers had suffered dISCnmInatIOn or that there was a pattern of dISCnmInatIOn In the Sault St. Mane 3 JaIl FInally counsel argued that eVIdence regardIng allegatIons subsequent to the filIng of the gnevance, should not be permItted at the heanng Into thIS matter Counsel relIed on OPSEU (Ross) and The Crown in Right of Ontario (Ministry of Solicitor General and Correctional Services) (2003)GSB# 2690/96 et al (HerlIch) Religious Hospitallers of Hotel Dieu of St. Joseph of the Diocese of London and ONA. (Curtis) (1995) 47 L AC 4th 84 (Watters) Ontario Liquor Board Employee s Union (Koonings Fronel) and The Crown and Right of Ontario (Liquor Control Board of Ontario) GSB# 3483/92 et al (Stewart) In summary counsel for the umon argued that the board should exerCIse ItS dIscretIOn to admIt eVIdence of allegatIOns of dISCnmInatIOn datIng back to 1987 Counsel argued that the onus IS on the complaInants to prove dISCnmInatIOn and that It would preJudIce the IndIVIduals not to hear all the eVIdence In thIS case Counsel argued further that the partIes before me agreed In theIr collectIve agreement that vIctIms of sexual harassment may be more preJudIced than the employer specIfically proVIdIng that tIme lImIts do not apply as set out In ArtIcle 222 1 provIded the complaInt IS made wIthIn a reasonable tIme She noted that employees often hesItate to file gnevances In such cases and that the code among coworkers In correctIOns not to "rat" out fellow officers acts as a deterrent to filIng complaInts Counsel argued further that the tImelIness of the eVIdence must be subJect to a reasonableness test not a calendar Further counsel argued that there was no eVIdence of actual preJudIce, that eVIdence had been destroyed or IndIVIduals were deceased. GIven the absence of actual eVIdence of preJudIce the balance favours the gnevors Counsel also argued that the employer had waived the nght to obJect to the "age" of the allegatIOns by not raiSIng the Issue at the stage two or earlIer Counsel relIed on OP SEU (Chan) and Crown in Right of Ontario (Ministry of Education) GSB# 1990/90 2269/90 OPSEU (Ross) and CrolJ,n in Right of Ontario (Ministry of the Solicitor General and Correctional Services) GSB#2690/96 et al Hotel Dieu Grace Hospital and ONA. (Bennett) 62 4 L.AC (4th) 164 Canada Post and CUP W (Racky) (unreported, 1997) (PIcher) City of Toronto and CUPE (Local 79) (Hayden) (unreported, 1996) (DevlIn) DECISION HavIng carefully consIdered the submIssIOn of the partIes I have concluded that the umon's Waiver argument cannot succeed. The employer was not provIded wIth partIculars untIl 2003 and there was no eVIdence provIded to the board that they had knowledge that the gnevors Intended to make complaInts about alleged dISCnmInatIOn gOIng back to as early 1987 I am of the VIew that thIS motIOn IS essentIally about the scope of the eVIdence In a case allegIng dISCnmInatIOn agaInst female correctIOns officers The employer wants the eVIdence lImIted to allegatIOns dunng the penod of one year pnor to the date of the gnevances The umon wants to be able to put eVIdence In that dates back to 1987 The reasomng In the Hotel-Dieu Grace Hospital case IS helpful ArbItrator PIcher said, consIdenng the scope of eVIdence In a case allegIng racIal dISCnmInatIOn "that It IS Important In thIS case to stnke a fair balance between the concerns of both partIes" (supra) In that case the umon wIshed to adduce eVIdence datIng back to the gnevor' s hIre date or some SIX years before the gnevance was filed. ArbItrator PIcher noted that thIS was not a case where the gnevor was unaware of her nghts or wIthout a reasonable basIs to conclude that she was allegedly the vIctIm of dISCnmInatIOn. In the case before me documents submItted to the board IndIcate that Ms Patterson was well aware of her nghts to file gnevances of alleged dISCnmInatIOn as she dId so In 1991 1992, 1993 and 1994 The agreed statement of facts IndIcates that all of the gnevors have prevIOusly filed gnevances allegIng dISCnmInatIOn and they raised the Issues Informally wIth management. There was no explanatIOn or eVIdence provIded for why the gnevors waited so long to gneve except that they were concerned about "rattIng" on theIr fellow officers ThIS IS not persuasIve gIven the agreed statement of facts IndIcates that they all dId complaIn at earlIer 5 tImes both by gneVIng and complaInIng Informally to management. Thus, lIke the gnevor In Hotel-Dieu Grace Hospital they were aware of theIr nght to gneve and had a reasonable basIs to conclude that they had been allegedly vIctIms of dISCnmInatIOn well before July 2001 The board In Hotel-Dieu Grace Hospital stated that It had concerns about allowIng eVIdence of a full SIX years because of the volume of eVIdence The concerns were eqUItable and procedural However the board also recogmzed the umon's need In such a case to show the pattern of dISCnmInatIOn. I must stnke a fair balance between the employer's and the umon's respectIve Interests GIven the gnevors were aware of theIr nghts, and In the absence of any eVIdence to JustIfy the extreme delay In gneVIng the events dunng the penod of 1987 to 1996 I have no dIfficulty In decIdIng that, In thIS partIcular case, the allegatIOns relatIng back to 1987 through to 1996 are sImply too old. The more dIfficult questIOn IS where to draw the lIne between 1996 and 2000 Both partIes descnbed thIS case as one allegIng a pOIsoned workplace I am therefore cogmzant of the umon's need to present eVIdence to support a pattern of dISCnmInatIOn. The Hotel-Dieu Grace Hospital case allowed eVIdence datIng back three years After reVIeWIng other cases put before me by the umon It IS clear that the Gnevance Settlement Board has allowed eVIdence datIng back three years, where the allegatIOns related to racIal harassment. In OPSEU (Chan) supra Vice-chair DIssanayake held that the "board has a wIde latItude to hear and consIder any eVIdence whIch It consIders relevant" and he cIted vIce-chair Kennedy In Re Taylor-Baptist GSB 163/87 as follows Once the gnevance IS properly before us wIthIn the procedures laid down In the collectIve agreement, the appropnate scope of eVIdence IS governed by the normal pnncIples dealIng wIth the admIssIbIlIty of eVIdence and ItS relevance to the Issues to be arbItrated. In the context of labour relatIOns, matters cannot and ought not to be determIned In a vacuum, and past events are customanly covered In the eVIdence In order to place a partIcular IncIdent that IS the subJ ect matter of a gnevance Into ItS proper context In the lIght of the on- gOIng employment relatIOnshIp It IS Immatenal that those past events can no 6 longer form the basIs of a gnevance due to the tIme lImIt provIsIOns of the collectIve agreement. It IS clear that the gnevances are properly before me and the only Issue IS the scope of the eVIdence Thus In balancIng the Interests of the umon to prove ItS case of an alleged pOIsoned work place and the employer's nght to defend Itself I have decIded that the umon may put eVIdence In regardIng IncIdents of alleged dISCnmInatIOn as may be relevant datIng back to August 1998 - a penod of three years before the gnevances were filed. With regard to the employer's request to lImIt eVIdence on allegatIOns that It argues IS not relevant, I am not In a posItIOn to decIde thIS In a prelImInary award. Without the context of the eVIdence, a rulIng here IS premature LIkeWIse, It IS premature to make a decIsIOn on allegatIOns (supra) anSIng after the gnevances As ArbItrator Watters stated In Hotel Dieu (St. Joseph) the gUIdIng pnncIple In post-gnevance eVIdence IS whether the eVIdence IS relevant. I am not In a posItIOn to make a rulIng on thIS now Dated at Toronto thIS 18t day of December 2003 ~ '. . - . . ,,,:".,..,. '.. .' .. IJ.t ~ ,- . '.. D . - h -, -chair - "0 ~' .... . ";';. ~