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HomeMy WebLinkAbout2010-2654.Pacheco.18.05.28 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 Senior Counsel TELECONFERENCE May 24, 2018 - 2 - DECISION [1] I am hearing a number of discipline grievances filed on behalf of Mr. J. Pacheco, a Bailiff. We are at a stage in the proceeding where the Employer is calling its evidence. It is likely that the testimony of a Manager will be completed soon and the Employer intends to call a few more witnesses before closing its case in chief. An issue has arisen regarding the recalling of three employees who had been called by the Employer to testify. I heard from counsel on the recall issue during a conference call held on May 24, 2018. [2] During the course of this proceeding, the parties have addressed a number of disclosure issues, primarily related to the production of documents. The parties agreed to address these issues without delaying the calling of witnesses. Without setting out the agreement of the parties in detail, I note that counsel agreed that the Union could request the recall of an Employer witness for the purpose of dealing with matters covered in documents that were produced after the witness had testified. With respect to three Employer witnesses who had testified last year, Union counsel advised that he had likely completed his cross-examination, subject to his right to request the recall of the witness if the subsequent production necessitated further cross-examination. With at least two of the witnesses, Employer counsel may have questions for them in re- direct. It appears that there are no longer any outstanding production issues. For the purpose of organizing the presentation of the Employer’s case, Employer counsel has requested that the Union advise him if the Union wants to have any of the three witnesses recalled. The Union has responded by indicating that it will decide on whether it wants any of the three witnesses recalled only after the Employer presents the rest of its case in chief. The Employer has requested that I direct the Union to indicate now whether it wants any of the three witnesses recalled so that their testimony can be completed in a timely fashion and because of its view that it has the right to decide when and in what order to call its witnesses. On this last point, Employer counsel relied on the Association of Management, Administrative and Professional Crown Employees of Ontario (Mar et al) v. The Crown in Right of Ontario (Ontario Science Centre), 2010 CanLII 28620 (ON GSB). - 3 - [3] Having considered the submissions, I am satisfied that it is reasonable in the circumstances for the Union to decide now whether it wants any of the three witnesses to be recalled. Having received the relevant documents, the Union is now in a position to decide whether it has any further cross-examination of these witnesses and to complete its cross-examination in a timely manner. To defer the decision on the recall of the witnesses until the Employer has called the rest of its case is not consistent with the purpose of the agreement on the recall of witnesses and it unduly restricts the Employer’s right to call its case as it sees fit. As a general matter, delay in the completion of the testimony of a witness should be avoided if possible. [4] I appreciate that the Union may need some time to determine whether the subsequent production of documents will require further cross-examination of the witnesses who were subject to recall. I therefore direct the Union to advise the Employer by no later than June 15, 2018, as to the witnesses it wants recalled for further cross-examination due to the subsequent production of documents. After June 15, 2018, the Employer can decide to recall a particular witness consistent with its right to organize the presentation of its case. Dated at Toronto, Ontario this 28th day of May 2018. “Ken Petryshen” 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