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HomeMy WebLinkAbout2017-0123.Beharrell.18-04-20 DecisionCrown 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# 2017-0123; 2017-0179; 2017-0486; 2017-0487 UNION# 2017-0248-0013; 2017-0248-0014; 2017-0248-0019; 2017-0248-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Beharrell) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Diane Gee Arbitrator FOR THE UNION Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel HEARING April 17, 2018 -2- DECISION [1] The parties are agreed that I have jurisdiction to deal with grievance numbers 2017-0248-0013; 2017-0248-0014; 2017-0248-0019; and 2017-0248-0020 (GSB numbers 2017-0123; 2017-0179; 2017-0486 and 2017-0487) and that these matters will be heard together. [2] Grievance 2017-0248-0013 alleges violations of the collective agreement in connection with an investigation conducted by the Employer into an incident that occurred on November 3, 2016. This grievance is referred to herein as the “Investigation Grievance.” The incident that occurred on November 3, 2016 is referred to herein as the “November 3, 2016 Incident.” [3] Grievance 2017-0248-0014 alleges: “HWDC continues to harass and investigate the Grievor with a new allegation which is obviously a reprisal for the Grievor’s submission of a grievance dated March 15, 2017.” This grievance is referred to herein as the “Reprisal Grievance.” [4] Grievance 2017-0248-0019 relates to a 15 day and 2 day suspension given to the Grievor and alleges the Employer mishandled and made malicious decisions in regard to the November 3, 2016 incident. The grievance states in part: “The Administration’s subsequent inconsistent, disproportionate, idiosyncratically harassing discipline is viewed by the Grievor as retribution for past Union activities and the occurrence itself and a personal attack by the Administration of HWDC without just cause or provocation.” This grievance is referred to herein as the “Suspension Grievance.” [5] Grievance 2017-0248-0020 relates to the manner in which the Employer managed the non-payment of wages to the Grievor in connection with a suspension. The grievance alleges the Employer failed to follow: “well known and set precedence pertaining to the payment of monies for a suspension. They/He have taken a personal vested interest in the unjust punishing of this grievor.” This grievance is referred to herein as the “Payment of Monies Grievance.” [6] The parties referred these grievances to mediation/arbitration in accordance with Article 22.16 of the collective agreement. Article 22.16 provides, in part, as follows: 22.16 MEDIATION/ARBITRATION PROCEDURE 22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/ arbitrator for the purpose of resolving the grievance in an expeditious and informal manner. 22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the -3- grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. [7] The parties were unable to resolve the grievances by mediation and accordingly discussions were held concerning the management of the hearing. The Employer agreed to forthwith provide Union counsel with a copy of the grievor’s personnel file. [8] The Union requested an order that the Employer produce the videos relating to the November 3, 2016 Incident and copies of the discipline letters given to any other individuals in relation to the November 3, 2016 Incident. Having regard to the highly confidential nature of the videos and the discipline letters the Employer vigorously contested the order. Ultimately, an agreement, without prejudice or precedent to any other matter, was reached that the videos and discipline letters would be produced with strict restrictions concerning who may view them, their distribution, use and confidentiality. [9] Having regard to parties’ agreement the Employer is hereby ordered to forthwith provide to counsel for the Union a copy of the videos and the disciplinary letters. The contents of the videos and the disciplinary letters are to be kept confidential as among the parties and are to be used for the purposes of this hearing only and for no other or improper purpose. Union Counsel will retain in his possession at all times the copy of the videos and disciplinary letters provided to him by the Employer and will not make copies thereof except for the purpose of the hearing of these grievances. Union Counsel can show the videos and disciplinary letters to, and discuss them with, the grievor and a single advisor from the Union selected by her. Once the litigation of these grievances is completed, the videos and the disciplinary letters are to be destroyed except such copies as a professional person is required by law or a professional body to keep as part of his or her file. For the sake of clarity, the contents of the videos and the disciplinary letters can be seen by the grievor, and the one union advisor she has selected, in the presence of Union counsel. The grievor and her advisor are prohibited from discussing the contents of the videos or the disciplinary letters with anyone other than Union counsel. [10] Pursuant to article 22.16 I can impose conditions on the conduct of the hearing as I consider appropriate. Having regard to the language of article 22.16, the parties have agreed that the arbitrator can take steps to ensure that hearings proceed in a timely manner and do not consume time and resources out of proportion to the issues in dispute. With this goal in mind, I direct as follows: (i) No later than May 11, 2018, each party will provide to the GSB and the party opposite a written statement of the facts they rely upon in connection with all four grievances (“Statement of Facts”.) For ease -4- of reference, the paragraphs of the Statement of Facts are to be numbered and reference to documents contained within the Employer’s Book of Documents can be referred to by Tab Number. Any documents not yet provided to the opposite party that a party intends to rely upon are to be provided at the same time as the Statement of Facts. Paragraphs should be kept short and succinct in order to facilitate the opposite party’s ability to agree to a stated fact. Time is not to be spent on formatting, spelling, grammar etc. The exercise is simply to get the facts down. (ii) No later than May 25, 2018 each party will advise the GSB and the other party, by reference to paragraph numbers set out in the opposite party’s Statement of Facts, of the facts that are not in dispute. (iii) No later than June 1, 2018 each party shall advise the GSB and the other party if there is need to call any witnesses other than Tom Bradley and the grievor. If a party asserts there is a need for an additional witness to be called, reasons will be given. The Employer’s Book of Documents, the videos and the disciplinary letters will be entered as exhibits without need for them to be identified or the authors to be called. They will be assumed to be what they appear, on their face, to be. For example, the document at Tab 4 will be assumed to be a Use of Force Occurrence Report completed by B. Dixon on November 3, 2016 and it will be assumed that she wrote the contents of the report on that date. By way of further example, the letter at Tab 2 will be assumed to be the Employer’s reasons for imposing the 15-day suspension. (iv) At the commencement of the hearing on June 8, 2018 brief opening statements will be made following which the Employer will call Mr. Bradley. He is to be asked to attest as to the accuracy of the Employer’s Statement of Facts and can give evidence about matters that have been identified as in dispute. He will then be subject to cross-examination. If either party has indicated that a witness other than Mr. Bradley and the grievor need to be called, I will deal with the issue at the conclusion of Mr. Bradley’s evidence. If no other witness is to be called, following Mr. Bradley’s evidence, the Union will call the grievor. As with Mr. Bradley, the grievor will attest to the accuracy of the Statement of Facts filed on her behalf and give evidence about matters that have been identified as in dispute. -5- [11] These matters are scheduled to be heard on June 8, 11, 15 and 22 as well as October 1, 2018. The previously set dates of September 25 and 26, 2018 are cancelled. Dated at Toronto, Ontario this 20th day of April, 2018. “Diane Gee” ________________________ Diane Gee, Arbitrator