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HomeMy WebLinkAbout2010-2654.Pacheco.18.01.31 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 and Manprit Singh Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel TELECONFERENCE January 29, 2018 - 2 - DECISION [1] I am hearing a number of discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. We are at the stage where the Employer is calling evidence and Mr. Dykstra, a Manager, is being cross-examined. The Union made a number of disclosure requests that relate primarily to Mr. Dykstra’s testimony. These disclosure requests were addressed during a conference call held on Monday, January 29, 2018. Having regard to nature of the discussion during the conference call, I am not required to rule on all of the approximately 25 disclosure requests. In commenting on the requests and when ruling on some of them, I will reference the numbered List of requests prepared and distributed by Mr. Brewin in advance of the conference call and his email dated email dated January 28, 2018, which included two disclosure requests. I note that the requests numbered 1 and 18 on the List were withdrawn by the Union before the conference call. [2] Items 2 to 13 on the List request the Employer to produce Mr. Dykstra’s hand- written and typed notes of a number of allegation and disciplinary meetings. Item 14 requests all correspondence between the Employer and Mr. Dunscombe in relation to Mr. Pacheco and/or the audio of Feb.12, 2016. Mr. Dunscombe was an investigator for one of the incidents for which Mr. Pacheco was disciplined. With respect to these items, the Employer takes the position that it has produced all of the notes and correspondence in its possession. Employer counsel undertook to verify again that the Employer has produced all of the requested items in its procession. [3] Items 15 and 16 on the List request the production of certain draft allegation letters and draft disciplinary letters that were referenced in Mr. Dykstra’s testimony. On the basis of the submissions on this issue, I am not satisfied that these draft letters have any relevance to the issues in dispute. The focus must be on the actual allegation and disciplinary letters issued to Mr. Pacheco. The mere fact that a witness makes reference in his or her testimony to the preparation of draft letters prior to issuing a letter does not, by itself, make the draft letters relevant. The request for these items - 3 - does appear to fall within the category of a fishing expedition. The Union’s request is therefore denied. [4] Item 17 on the List requests Mr. Dykstra’s office and cell phone records for Feb. 25, 2016. The reason for this request is to determine if Mr. Dykstra was credible when he testified about the manner in which he communicated with Ms. A. Fowler on Feb. 25, 2016. The Union wishes to ascertain if Mr. Dykstra communicated with Ms. Fowler by phone, contrary to what he said in his testimony. There is nothing in the evidence to suggest that Mr. Dykstra’s recollection of his manner of communication with Ms. Fowler is not credible. A witness will likely refer to many matters that are not particularly relevant to the central issues in a dispute and his or her recollection of these kinds of matters may not be perfect. However, in my view, the purpose of the disclosure process is not intended to permit a party to request disclosure of an item to corroborate the credibility of a witness on a matter that has no particular relevance to the central issues in dispute. Credibility is important of course, but it does not justify a disclosure request that is based only on checking to determine whether a witness’s testimony is accurate on a matter of no particular relevance. There is no justification for the disclosure request set out in item 17. This request also appears to fall within the category of a fishing expedition. This Union request is denied. [5] With respect to the disclosure requested on the List in items 19, 20, 23 and 24, Union counsel advised that he would first deal with these matters by asking Mr. Dykstra further questions. It may be that there are no documents relating to these matters. [6] Item 21 on the List requests the disclosure of Mr. Dykstra’s OCSC training records. The Union wishes to get some confirmation of Mr. Dykstra’s investigative training. This issue was addressed in Mr. Dykstra’s evidence-in-chief. I find that the requested document is arguably relevant and direct the Employer to produce Mr. Dykstra’s OCSC training records. [7] Item 22 requests time sheets for all Bailiffs for July 24, 2015, in order to test Mr. Dykstra’s assertion that the workplace restoration meeting on July 24, 2015, lasted - 4 - about 6 hours. My response to this request is the same as the response I gave in paragraph 4. This disclosure request is over a statement Mr. Dykstra made that has no particular relevance to the central issues in dispute. This Union request is denied. [8] Item 25 requests documentation that relates to the Union’s request to certain employees to produce ORs on the incident giving rise to the 15-day suspension. It is not clear that the requests at issue were made in writing. However, if the requests of the three employees to produce ORs were made in writing, the Employer should produce the documentation the Union has requested if they still have it in their possession. [9] As noted previously, Union counsel made two additional disclosure requests in his email dated January 28, 2018. The Union requests the Employer to produce the ORs relating to an incident that occurred in 2015 involving Mr. Nelson and Mr. Powis. The Employer now responds to this request by indicating that Maplehurst and the Offender Transport Unit is not in possession of such ORs. [10] The second disclosure request in the email is the Union’s request for the Employer to produce a Memorandum of Settlement that resolved a previous employment issue between Mr. Dykstra and the Ministry. Apart from whether this document contains a confidentiality provision, I am satisfied that such a document and its terms can have no relevance to the central issues in this proceeding. The Union’s request for the disclosure of this document is therefore denied. I understand that Union counsel may have further questions of Mr. Dykstra about his history with Mr. Nelson. This ruling does not decide whether any of these questions would be relevant. [11] The hearing of Mr. Pacheco’s discipline grievances will continue on February 2, 2018. It is anticipated that Mr. Dykstra’s testimony will be completed on that day. Dated at Toronto, Ontario this 31st day of January 2018. “Ken Petryshen” Ken Petryshen, Arbitrator - 5 - 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