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HomeMy WebLinkAbout2006-0325.Poirier.07-01-15 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2006-0325,2006-0326,2006-0377,2006-0378 UNION# 2005-0704-0006,2006-0704-0001, 2005-0704-0007, 2006-0704-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER TELEPHONE CONFERENCE Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Poirier) - and - The Crown in Right of Ontario (Ontario Clean Water Agency) Owen V. Gray Jim Gilbert Grievance Officer Ontario Public Service Employees Union Simon Heath Counsel Ministry of Government Services January 10,2007. Union Employer Vice-Chair 2 Decision [1] The grievor was disciplined on or about November 22, 2005. In December 2005 she filed two grievances: one alleged harassment and discrimination, the other alleged that the grievor had been unjustly disciplined. In March 2006 the grievor filed a further grievance alleging violation of Article 3, in that she had not been accommodated "under 'duty to accommodate' and the Ontario Human Rights Code." In an exchange of correspondence with management in mid April 2006, the grievor said she would resign with June 2, 2006 as her last day of work if the employer did not give her certain time off, as vacation or otherwise. The employer responded by denying the time off and purporting to accept the resignation effective the day it had been offered. The grievor then filed a grievance alleging unjust dismissal. The employer says it was entitled to accept the grievor's resignation with immediate effect and that, accordingly, there was no dismissal. [2] Having agreed that all these grievances shall be heard together in some fashion, the parties were in dispute about the order of proceeding at hearing (should mediation fail) and had difficulty with their requests for a pre- med-arb exchange of particulars and productions. [3] Having regard to the nature of the issues and the history of these proceedings to date, I direct that each of the parties provide the other with full written particulars of the allegations of fact on which it relies in these matters. Each party shall also provide the other with copies of any documents in its possession, custody or power (and, in the case of the union, any document in the possession, custody or power of the grievor) on which that party may wish to rely in these proceedings. [4] With respect to each act or omission alleged, each party's particulars shall indicate what was done or not done, when, where, by what means and by whom. Conclusory statements based on unparticularized allegations of fact are not sufficient. The allegations of fact set out in a party's particulars should be sufficiently comprehensive that it would be unnecessary for that party to call any evidence at arbitration if the opposite party were to admit that all of the allegations of fact therein 3 were true. It is not necessary for a party to include in its particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out. It is not necessary for a party to identify in its particulars any witness to an event in question, unless the presence of that individual is a material fact on which the party relies. [5] The union's particulars shall set out the remedies sought with respect to each of the gnevances. Except as to the bifurcated issues described in the balance of this paragraph, the union's particulars shall include any allegations of fact on which it intends to rely in support of its claim for those remedies. The parties agree that the issues in dispute will be bifurcated, in that issues relating solely to the amount of compensation claimed in respect of any loss of wages and benefits caused by allegedly will not be addressed in these proceedings unless and until the issue of liability to pay compensation is determined. Accordingly, the parties are not required to include in their particulars any allegations of fact on which they may wish to rely solely on the issue of compensation and any related issue of mitigation, or to produce documents on which they may wish to be able to rely solely with respect to those deferred issues. (The parties should, however, be prepared to discuss those issues in the mediation phase of this med-arb proceeding.) [6] The aforesaid particulars and productions shall be delivered in accordance with the following agreed -upon timetable: a) On or before 5:00 p.m., Friday, January 26, 2007, the employer shall deliver to the union's representative particulars of the facts on which it will rely in its case-in-chief on the unjust discipline grievance and the grievance alleging unjust dismissal, and copies of any documents upon which it may wish to rely in that respect. b) On or before 5:00 p.m., Friday, March 2, 2007, the union shall deliver to employer counsel particulars that 1. with respect to the allegations in the particulars delivered by the employer pursuant to paragraph a), identify the allegations with which the union agrees, if any, and the allegations with which it disagrees and, as to the allegations with which it disagrees, the 4 version of the facts on which it relies in that connection, and set out its allegations of fact with respect to any other issue it proposes to raise with respect to its grievances about the discipline and alleged dismissal; and, ll. set out the allegations of fact on which the union will rely in its own case-in-chief on the harassment and failure to accommodate gnevances, together with copies of any documents upon which the union may wish to rely in those respects. c) On or before 5:00 p.m., Monday, March 19, 2006, the employer shall deliver to the union's representative particulars that 1. with respect to issues first raised by the union in response to the employer's particulars of its case-in-chief on the discipline and alleged dismissal grievances, set out any additional allegations of fact on which it may wish to rely in reply in respect of those issues, and ll. with respect to the allegations in the particulars delivered by the union with respect to its case-in-chief on the other grievances, identify the allegations with which it agrees, if any, and the allegations with which it disagrees and, as to the allegations with which it disagrees, the version of the facts on which it relies in that connection, and set out its allegations of fact with respect to any other issue it proposes to raise with respect to the other grievances, together with copies of any (additional) documents upon which the employer may wish to rely in those respects. d) On or before 5:00 p.m., Friday, March 30, 2007, the union shall deliver to employer counsel particulars setting out any additional allegations of fact on which it may wish to rely in reply on issues first raised by the employer in response to the union's particulars of its case-in-chief on the 5 other grievances, together with copies of any (additional) documents upon which the union may wish to rely in that respect. [7] The deadlines specified in this order may be varied by written agreement of the union and employer. [8] A party who fails to produce a document or to provide particulars of an allegation in accordance with this order may not introduce that document or present evidence about that allegation in the arbitration of these grievances without leave. [9] The provisions of this order with respect to production of documents do not preclude further application by either party, once the issues in dispute have been defined in accordance with those directions, for an order requiring the production by the opposite party of documents it does not produce in accordance with the foregoing directions. Dated at Toronto this 15th day of January, 2007.