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HomeMy WebLinkAbout1992-0348.Hurge.92-12-10 ~i ~ ~-;! .- - .,^ ONTARIO EMPLOYES DE LA COURONNE '. - I ~. .. '. - CROWN EMPLOYEES DE L'ONTARIO ~ ~ ",.., .~~ , ~., - 1111 GRIEVANCE COMMISSION DE , -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STReET WeST SUITE 2100 TORONTO ONTARIO, M5G lZ8 TELEPHONEITELE:PHONE (4/6) 326-/388 180 RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITE:LE:COPIE (4/61 326-/396 348/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARP, BETWEEN OPSEU (Hurge) Grievor ~ - and - The Crown in Right of ontario (Ministry of the Attorney General) Employer - BEFORE W Kaplan Vice-Chairperson J C. Laniel Member F Collict Member FOR THE M. Gottheil UNION Counsel Lynk Engelmann & Gottheil Barristers & Solicitors FOR THE R Filion EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors ~ HEARING November 4, 1992 \~, l - ----~ 2 - .. Introduction This case concerns three grievances filed by Mr Archie Hurge on February 26, 1992 The first grievance states' I grieve that I have been disciplined without just cause by my removal from my assignment as Regional Senior Investigator of the Police Complaints Commission The remedy requested is. That I receive full redress for losses suffered as a result of this discipline The second grievance alleges. Violation of Article A of the Collective Agreement in that I have been discriminated against by reason of race The remedy requested is: 1 That the Board issue a declaration to be po~ted in the workplace that I have been discriminated against on the basis of race and that the Employer be directed to cease and desist from their discriminatory practices. 2 That I be placed in the position of Senior Investigator (Eastern Region) effective March 6, 1992 3 That I be compensated for all losses suffered as a result of this discriminatory action ~ The third grievance alleges Violation of Article 27 1 0 3 2 in that the Employer did not conduct their investigation pursuant to Staff Relations Policy and that I was not provided with relevant documents relating to the investigation and further, I was not formally made aware of the substance . - ---.--- - - - ,. 3 " of the cOfrlplaint against me and further, this ., investigation was pecuniary in nature The remedy requested is: 1 Production of all relevant documents relied on by the investigator 2, Removal from my file any correspondence relating to the investigation 3 Results of investigation to be declared null and void 4 Any actions taken against me as a result of the investigation be rescinded These three grievances proceeded to a hearing in Toronto, at which time counsel fOT the parties agreed to their consolidation and asked the Board to make rulings with respect to a number of preliminary issues in dispute In particular, the Board was asked to rule on (1) venue of the proceedings, (2) order of the proceedings and (3) a union request for disclosure of certain \ employer aocuments. Ultimately, the parties were able to agree on the ~, first issue, and it was decided that subsequent hearing days would take place in Ottawa, except where testimony of witnesses made Toronto the more convenient venue. The remaining issues could not, however, be resolved and the Board heard argument with respect to them. Before turning to that argument it is helpful to outline very briefly some of the background to this case as presented in the opening submissions of counsel While this background information is not evidence, it is helpful to review it as it is relevant to the disposition of the outstanding procedural issues which will then be addressed~ Union Submissions The grievor is a long-service employee of the Ministry of Correctional , Services In 1 991, he was seconded to the Ottawa Office of the Police \...j' Complaints Commission as the acting Regional Senior Investigator This 4 office was staffed by two persons, the grievor and one support staff Initially, the grievor was assisted by a temporary secretary A permanent - secretaria~ position was filled on an acting basis on April 15, 1991 by Ms. Giselle Delorme-Leclair Ms Delorme-Leclair had previously worked at the Ottawa Courthouse According to ulilion counsel, Ms. Delorme-Leclair worked for several days at her new job, and then left on a pre-arranged vacation She returned briefly to the office after her vacation, filed a sexual harassment complaint against the grievor and then returned to her previous place of employment. The employer then asked Ms. Dianne Desjardins, who works for the Ministry of Northern Development and Mines in Sudbury, to conduct an investigation Following this investigation, a report was prepared. A meeting was then held with Mr Clare Lewis, Police Complaints Commissioner, Mr Mark -- Conacher, the Executive Director of the Office of the Police Complaints Commissioner, thegrievor and his counsel Ms Janice Payne According to I union counsel, thegrievor's solicitor only received this report the day prior I to this meeting Following the meeting the grievor's secondment was \ terminated and he was returned to his job at the Ministry of Correctional I Services. The grievor received a formal reprimand from Mr Lewis which I was placed on his personnel file. The three grievances cited above were then filed . The union submitted that the investigation of the sexual harassment allegations was seriously flawed Counsel advised the Board that the union would seek to show that the investigation was not conducted in accordance with established procedures, nor in accordance with principles of natural justice Counsel advised the Board of some evidence which he intended to lead in this respect, including evidence demonstrating that the grievor was I '" 5 " , not fully apprised of the allegations against him, that the investigator failed to take into account documentary evidence that the grievor provided which went to the improper motive of the complainant, and that the investigator never gave the grievor the opportunity to respond to certain allegations made against him during the course of the investigation It was counsel's submission that the investigator acted in bad faith, as did the employer in relying on the investigator's report even after it was advised of the grievor's concerns with respect to it, including the fact that the investigator had failed to take relevant information into account. Examples were cited illustrating the union's concern about other issues raised in this case, and the suggestion was made that the grievor's transfer was in some way connected to an investigation im which he was engaged Union co~nsel advised the Board that the grievor has also filed a human rights complaint alleging racial discrimination, and has launched a civil - suit in respect of damages he has suffered as a result of the release of the investigator's report to the press With respect to these collateral matters, there was some discussion between counsel as to the terms of the stay of proceedings in the civil matter, and the implications of this for the instant case, and counsel agreed to investigate this matter further and, if necessary, raise it before the Board Another outstanding issue is whether or not the termination of the secondment was related to the grievor allegedly not permitting Ms. Delorme-Leclair to speak French while at work. Employer counsel advised the union and the Board that he would seek instructions on this issue Employer Submissions Employer counsel began his submissions by stating that Ms. Delorme-Leclair ~ accepted the position, which was also a secondment, on an acting basis and 6 he noted that it was a promotion for her Counsel advised the Board that Ms. Delorme-Leclair worked in the office for approximately two weeks before -~ leaving on her vacation, not several days During those two weeks, the grievor was away for the office for much of the time, as he was conducting an investigation Ms. Delorme-Leclair acted in a clerical capacity, but also did intake and other similar work. While she was on her vacation, she contacted her previous supervisor, Mr Bob Beaudoin, the Regional Director Mr Beaudoin had originally encouraged the grievor to apply for the position, and when she contacted him she advised him that she was being sexually harassed. Counsel advised the Board that the incidents complained of were of the "poisoned work environment" variety Mr Beaudoin encouraged her to file a complaint, which she did. The employer then asked Ms Desjardins to conduct an investigation Ms. Desjardtns was bilingual, and this was among the reasons why she was selected Counsel took issue with the union's characterization of the investigation and suggested that the Board would, upon reviewing her report, find it thorough and to the point. Counsel also suggested that the investigator confronted the grievor and gave him an opportunity to respond to the allegations made against him. With respect to the investigator not returning to the grievor with allegations made during the course of her investigation, counsel conceded that it would have been better if she had done so, but that insofar as this was a defect, it was cured by Mr Lewis and ~ Mr Conacher meeting with the grievor and his counsel prior to ending his secondment and giving him an opportunity at that time to respond to the contents of the investigator's report. Counsel stated that the investigator would deny having received any documentary evidence favourable to the grievor Counsel submitted that the evidence would not support union allegations that the employer acted with improper motives. Rather, he 7 stated, the evidence would show that the employer acted properly in I responding to the allegations by conducting an investigation and then terminating the grievor's secondment one month prior to its scheduled termination In counsel's view, the letter of reprimand was a very limited response given the nature of the allegations made against the grievor After the parties outlined the background to the case, argument was heard with respect to the procedural matters in dispute Order of Proceedings Union Argument Union counsel stated that there "Vas no dispute about the legal burden of proof The employer bears the burden with respect to the discipline grievance, and the union bears the burden with respect to the other two grievances alleging the violation of certain provisions of the Collective ~ Agreement. Counsel submitted that in a certain sense the non-disciplinary grievances were part and parcel of the discipline grievance, so closely connected are the issues in this case. In counsel's view, this case is about disciplinary actions taken by the employer One component of that discipline was the faulty investigation complained about in one of the grievances, and another component was the improper and ulterior motives present in this case, namely certain allegations of racism, which need not be reviewed at this time. This component was reflected: in the grievance ~ alleging discrimination based on race Given that the central orientation of the case was the imposition of discipline, counsel argued that it would be appropriate for the Board, like the OLRB, to direct the employer to proceed first , \,~, --; 8 Counsel cited a number of decisions on point. The OLRB' has directed the r employer in some cases to proceed first, even though some of the employer - actions complained about raise the reverse onus and others do not. The leading decision on point is Domtar Packaging, [1982] OLRB Rep. 993, and counsel reviewed that case with the Board and distinguished it from an earlier Board decision: Craftline Industries Limited. [1977] OLRB Rep. 246 Applying this case law by analogy, counsel argued that in the instant case, the central union concern was the imposition of the discipline, and that the other grievances were intimately related to that concern In counsel's submission, it would not be fair in these circumstances to require the union to proceed first with its evidence concerning the non-disciplinary grievances. Counsel also argued that the union concerns' with respect to the conduct of the investigation were within the knowledge of the employer, and that particulars had been effectively provided with respect to the violation of Article A of the Collecti,ve Agreement. Those particulars were provided in the grievor'shuman rights complaint, which was filed as an exhibit with the Board, and insofar as the employer was prejudiced by having to proceed first on this grievance, that prejudice could be alleviated by granting it a wider right of reply . Employer Argument Employer counsel began his submissions on this issue with the observation that it was curious that union counsel placed so much emphasis in his . opening statement on the deficiencies in the investigation, and then when it came time to make submissions on the order of proceedings the focus shifted to the disciplinary nature of the case. Counsel also noted that the union focus on the investigation was further illustrated by the disclosure order which the union sought. In counsel's submission, given the fact that the union had placed so much emphasis on the flaws in the investigation, ----- -~ . 9 instead of on the merits of the discipline, this was not an appropriate case . to order the employer to proceed first. Counsel noted that there were three ,- grievances before the Board, and of these three only one imposed an evidentiary burden on the employer Moreover, counsel questioned why the employer should be forced, with respect to one of the grievances, to lead evidence in response to the unproved allegations of a human rights complaint. Counsel referred the Board to Craftline Industries Limited, supra. and argued that in cases of this kind the Board must look at the general thrust of the case, and that this included doing a numerical analysis. Where one grievance imposed the evidentiary burden of proceeding first on the employer and the other two did not, and where the thrust of the union's case was attacking the pr;ocedure and not the discipline, the Board should not exercise its discretion to order the employer to proceed first. Decision With Respect to Order of Proceedings - While we have some sympathy for the position advanced by the employer, we are satisfied that this is an appropriate case for the Board to exercise its discretion and order the Employer to proceed first. The OLRB noted in Domtar. supra, that "All the allegations involve many common factual features, we see no substantial embarrassment to the employer if it is required to proceed first; and much of the allegations involve matters primarily within the employer's knowledge There is no dispute that whoever proceeds first with respect to the section 1 5 alleg~tion, the legal burden remains with the complainant trade unions on that issue" (at 997) We reach the same conclusion in the instant case Whether or not counsel for the employer is correct that the thrust of the union's case is directed toward impugning the conduct of the investigation of the sexual harassment allegations, the justness of the resulting 10 imposition of discipline is the central issue in dispute, and while the issues raised in the other two grievances are serious, they are essentially collateral to it. It is conceivable that our ultimate disposition of the three grievances many not be uniform, but as in Domtar, suora. we are of the view that this is an appropriate case to direct the employer to proceed first given that the bulk of the evidence which we will hear will relate, one way or another, to the imposition of this discipline Moreover, we are also of the view that procedurally, given the inter-related nature of the facts in dispute, this approach makes the most sense in terms of making the best use of the Board's and the parties' time and resources. Moreover, this will be the fairest and most expeditious manner of proceeding See Ontario Bus, [1988] OLRB Rep. 914 (although this was a case in which the union was directed to proceed first) at 915 Given the employer's legitimate concerns with respect to proceeding first on the Article A grievance, it is appropriate to indicate at this time that the Board will grant the employer sufficient latitude in reply to effectively respond to the union's evidence on point. We also note, although it goes without saying, that notwithstanding this procedural direction, the legal burden with respect to each of the grievances has not changed. Disclosure of Documents Union Argument . Counsel requested disclosure of the following documents. 1 All documents used during the investigation and in the preparation of the investigation report, including but not limited to all witnesses statements, the letter of appointment of the investigator, copies of all correspondence between any Ministry or agency of the Crown and the investigator r 1 1 2. The J lames, addresses and telephone numbers of the ;. J 9 witnesses interviewed by the investigator \ .._- 3 Copies of any and all directives, ,guidelines, handbooks used by investigators, whether or not issued by the Crown, including (but not limited to) documents outlining the nature of investigations, the method by which investigations should be carried out, and the duties, role and responsibilities of the investigator In addition, copies of any instructional material used to train investigators 4 A copy of the Ministry of the Attorney General directive outlining the formal redress mechanism for dealing with sexual harassment complaints I . 5 All documentation and correspondence between the Ministry of Correctional Services and the Ministry of the A ttorney General concerning Mr Hurge 6 A copy of Mr Hurge's personnel file(s) -, Before hearing argument on this iss_ue, the parties were able to agree with respect to most of the documents which the union requested. In particular, the employer agreed to provide union counsel with the names, addresses and telephone numbers of the nine witnesses if it has them. Employer counsel agreed to make his best efforts to obtain directives, guidelines, etc, from the Ministry of the Attorney General, the Ministry of Mines and Northern Development and the Human Resources Secretariat, and to make any such materials that he is able to obtain available to union counsel. If the union is dissatisfied with this disclosure It will continue to enjoy ~ the right to subpoena relevant records by way of the subooena duces tecum. Employer counsel also agreed to provide union counsel with the Ministry of the Attorney General directive outlining the formal mechanism for dealing with \ sexual harassment complaints. Employer counsel also agreed to provide I I l J. union counsel with all documentation and correspondence between the _/ Ministry of the Attorney General and the Ministry of Correctional Services 12 - concerning the investigation of the sexual harassment complaint, the " ,: imposition of discipline and the transfer of the grievor back to his prior -, position. .No agreement was reached with respect to the grievor's personnel file, altheugh fellewing discussion it did net appear as if the griever weuld have any difficulty in obtaining a copy of it if he wished to' exercise his legal right to do so These issues having been resolved, the only outstanding issue was the union request for materials relating to' the investigation, and argument was heard on this point. Unien Argument Union counsel submitted the investigation of the allegations was inadequate, and so was the report that flowed from that inadequate investigation. The employer relied on that report to impose discipline and the unien should, in these circumstances, be entitled to, see the materials that formed the basis of that repert. In ceunsel's submissien, how the report was prepared and what materials were used (and not used) in its preparation was essential information necessary for the preparation of the union case. Counsel cited a number of cases in faveur of his request that the employer be directed to' preduce the repert, and he neted that preduction and admissibility were two separate issues. Employer Argument Employer counsel objected to what he described as a union fishing . expedition, and pointed out that whatever might have gone wreng with the conduct of the investigation, that was cured by a subsequent meeting in which the grievor was given every opportunity to reply to allegatiens against him. Mereever, ceunsel argued that the Board weuld be hearing viva voce evidence about the sexual harassment, and that this evidence weuld support the imposition of discipline This was not, in counsel's submission, . 13 " - an appropriate case in which to allow the union to "discover" these . documents, by way of subpoena duces tecum or otherwise, and he cited to the Board a number of authorities on point, including this Board's recent decision in Quinn 1 054/90 (Kaplan) Decision With Respect to the Discl0sure Reauest Having carefully considered the arguments and authorities, we are of the view that this is an appropriate case to give effect to the disclosure request made by the union We recognize that the Board does not have any power, per se, to order disclosure We do have jurisdiction to issue a subpoena duces tecum. The practical effect of such a subpoena is to require the disclosure of documents, and our order in this case exercises that jurisdiction, while avoiding the necessity of actually requiring a witness to attend under subpoena duces tecum with the documents requested in his or her possession In Quinn, suora. the Board reviewed the jurprudence on point. That case also involved a grievance filed following the imposition of discipline for alleged sexual harassment. In that case, like the instant one, the union sought access to witness statements and other materials compiled and collected by the investigator which were used in the preparation of his report, which in turn was relied on for the imposition of discipline The Board in Quinn, supra, found that credibility was one of the key issues to be determined in that case, and concluded that the materials sought had the potential of assisting the union in preparing for and presenting its case Specific documents were being sought, and the Board applied the test in Hyland 1062/89 (Ratushny), where the Board held that the issue to be determined .c; > was whether or not the materials in question were "arguably relevant." In J; Quinn, supra. the Board determined that the materials met this test. We \ , 14 '+c.f ~ make the same determination in the instant case. However, the scope of the materials being sought, namely, "All documents used during the investigation and in the preparation o,f the investigation report, including, but not limited to all witnesses statements, the letter of appointment of the investigator, copies of all correspondence between any Ministry or agency of the Crown and the investigator," is unnecessarily broad Instead of ordering the disclosure of "all materials" we find that ordering the disclosure of the witness statements, the letter of appointment of the i'nvestigator, and copies of all correspondence between any Ministry or agency of the Crown and the investigator concerning this particular investigation will more appropriately give effect to the union request. These materials are arguably relevant to the three grievances before us. In making this finding, we are not saying that these materials will be relevant, or even that they will be admissible. They are, however, arguably relevant. The union is not on a fishing expedition, and it has given the Board sufficiently convincing reasons in favour of its fairly sp~cific request to justify this order Moreover, given the union submissions with respect to the employer's alleged bad faith .in the conduct of the investigation and the imposition of the discipline, the case for disclosure is strengthened Obviously, we are not making any findings as to the ultimate validity of these, or any of the submissions of either party, in making ttiis order Union counsel undertook at the hearing to preserve the confidentiality of these materials, and he is so directed. Conclusion The preliminary matters having been determined, this case will proceed on \ i, I I.J .. .,,; 't . a date or dates set by the Registrar f DATED at Toronto this 10th day of December, 1992 W~ -~ --- William Kaplan Vice- irperson -- C. Laniel Member g~ F Colli Member -. . 0