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HomeMy WebLinkAbout2010-2654.Pacheco.17-09-12 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2010-2654 UNION#2010-0234-0283 Additional grievances noted in Appendix “A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pacheco) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel TELECONFERENCE September 11, 2017 - 2 - DECISION [1] I have before me a number of discipline grievances filed by Mr. J. Pacheco. The hearing of evidence relating to these grievances commenced on November 18, 2016, and we are at the stage of the proceeding where the Employer is still presenting its case in chief. [2] On February 24, 2017, the Employer called Ms. T. Frankovitch as a witness. She testified during her examination-in-chief about her role in a fact finding meeting held on February 12, 2016. Mr. Pacheco was present at the fact finding meeting. Ms. Frankovitch’s examination-in-chief was completed on February 24, 2017, but cross- examination has not yet commenced. Subsequent to the completion of her examination-in-chief, the Union produced an audio recording of the fact finding meeting made by Mr. Pacheco on his phone. Ms. Frankovitch will be recalled to testify on September 12, 2017. Employer counsel has requested that he be provided with the opportunity to reopen his examination-in-chief of this witness. Before the witness is recalled to testify, Employer counsel intends to let Ms. Frankovitch hear the relevant audio recording and to prepare her for the continuation of her examination-in-chief as if the Employer had received the audio recording in a timely manner before the witness had commenced her examination-in-chief. Union counsel has agreed that Employer counsel can play the audio recording for Ms. Frankovitch and that he can prep her as if he had received the audio recording before her testimony had commenced. As the Arbitrator in this proceeding, I direct that Employer counsel can proceed in this manner with the witness so that he can complete his examination-in chief. In particular, and consistent with the view I expressed during a conference call with counsel held on September 11, 2017, I direct that Employer counsel can communicate with Ms. Frankovitch and prepare her for the continuation of her examination-in-chief as it relates to the subject of the relevant audio recording. I provide this direction in light of The Law Society of Upper Canada’s Rules of Professional Conduct, particularly Section 5.4 which deals with communication with witnesses giving evidence. - 3 - [3] I note that counsel have agreed that the relevant audio recording will be entered as an exhibit on consent, subject to the outstanding issue about its authenticity. Dated at Toronto, Ontario this 12th day of September 2017. Ken Petryshen, Arbitrator - 4 - Appendix A GSB Number OPSEU File Number 2012-0727 2012-0234-0066 2013-3214 2013-0234-0359 2014-0350 2014-0234-0061 2014-3305 2014-0234-0458 2014-3846 2014-0234-0508 2014-4854 2015-0234-0030 2015-0390 2015-0234-0058 2015-0494 2015-0234-0069 2015-0495 2015-0234-0070 2015-0496 2015-0234-0071 2015-0913 2015-0234-0085 2015-0914 2015-0234-0086 2015-0915 2015-0234-0087 2015-0916 2015-0234-0088 2015-1310 2015-0234-0108 2015-1311 2015-0234-0109 2015-1312 2015-0234-0110 2015-1313 2015-0234-0111 2015-1314 2015-0234-0112 2015-1315 2015-0234-0113 2015-1316 2015-0234-0114 2015-1317 2015-0234-0115 2015-1318 2015-0234-0116 2015-1319 2015-0234-0117 2015-1320 2015-0234-0118 2015-1321 2015-0234-0119