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HomeMy WebLinkAbout2003-3766.Union Grievance.07-12-03 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 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2003-3766 UNION# 2003-0999-0034 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Union Grievance) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Felicity D. Briggs Gavin Leeb Barrister and Solicitor Benj amin Parry Counsel Ministry of Government Services October 17, 2007. Union Employer Vice-Chair 2 Decision On December 19,2003, the Union filed a grievance that stated: The Employer has violated specifically, but not exclusively, Articles 2, 3, 9 and 21 of the Collective Agreement, with respect to the conduct, behaviour and actions of Ministry inspectors and investigators in the course of their investigations under Section 22 of the Ministry of Correctional Services Act. By way of remedy the Union asked "that the Employer be directed to ensure that Inspectors/Investigators perform their respective duties within accepted professional guidelines and standards, while respecting individual Rights." This matter has been outstanding for some time. Our first day of hearing was November 3, 2004. The Union originally identified some nineteen different investigations with which it took issue. Since the first day of hearing there have been ongoing discussions about issues of disclosure and particulars. This communication has taken place between the parties in correspondence, during the course mediation with this Board and it has also been the subject of conference calls. In a decision dated May 31, 2006, the Union was ordered to provide full particulars to the Employer. In that decision it was stated: In the instant matter, I am of the view that the Union has provided the employer with a general overview as to the theory of its case. However, it has fallen short of meeting its obligation to provide sufficient particulars. The grievance is very broadly stated and the Union's two letters setting out some particulars were not enough. The only information that the Union has given the Employer is the name of the institution, a name that should identify the investigation that is at issue and the general allegations that will be addressed in the litigation. Unlike the facts in Re Gareau, the particulars provided to date do not reveal the "who, what, where, when and how of the allegations". This Board has found in the past, and I am compelled to reiterate in this matter, that the Employer is entitled to that information. 3 The parties were agreed that this is an important matter and that it will probably be somewhat complicated litigation. For this reason it is all the more important that the parties are fully aware of the scope of the matters at issue from the outset. That being said, I recognize that matters might arise during the course of this litigation which could not have been reasonably foreseen. At the next day of hearing on November 25, 2006, the Union had provided particulars about one fact situation involving Mr. Hamza Bazger and an investigation which took place at the Toronto Jail. Later that day, as the result of mediation regarding the ongoing process, the parties agreed that the Union would provide full particulars regarding four other investigations within a reasonable period of time after which the Employer would provide the appropriate disclosure of documents. At the commencement of our next hearing day on October 17, 2007, I was informed that of the nineteen investigations which were originally identified, the Union was proceeding with only the investigation involving Mr. Bazger. However, the Union brought forward a request to consolidate two other grievances with this proceeding. The Employer strenuously objected to this request. The parties fully argued this request. I have set out highlights of their submissions below. The Union explained that the grievances it wished to consolidate both involve two separate but fairly recent Section 22 investigations. Both have caused the Union much concern. One investigation involved individuals at the Sarnia Jail (hereinafter referred to as the "Peckford investigation") and the other took place in Hamilton Wentworth Detention Centre (hereinafter referred to as the "Lamothe investigation"). The same investigating officer was involved in both instances. 4 The Union noted that in the Lamothe investigation the grievor was fired and three grievances were filed following the investigation and various management activities. One of the grievances dealt with the investigation leading to the grievor's termination. This grievance was added to the two others which the parties agreed would be heard by Vice Chair Brown. This folding in of the third grievance was an administrative error, according to the Union, and such was communicated to this Board. Given that this Board is holding a hearing looking into the propriety of Section 22 investigations, it is more appropriate for this Board to hear and determine the matter of whether the Lamothe investigation was proper. The Employer took the position that this Board should not exercise its discretion to consolidate either grievance. The Union grievance which is properly before this Board was filed in 2003 and the two individual grievances the Union now seeks to consolidate were filed in 2007. To consolidate the grievances would be wrong for a number of reasons. Notwithstanding the months and years which have elapsed since the filing of this grievance, the Union has provided particulars about only one fact situation, that is, Mr. Bazger at the Toronto Jail. Now the Union comes before the Board, literally years after the filing of the grievance and asks to consolidate other situations. It should not be allowed to do so. The Employer specifically objected to the consolidation request regarding the Lamothe grievance because Vice Chair Brown already has jurisdiction and his hearings will begin in February of 2008. It would be absurd to have two different Vice Chairs of this Board dealing with various components of an identical fact situation. Regarding the Peckford matter, as of the time of our hearing the investigation was not yet complete. While various grievances may be filed, it would be wrong of this Board to consolidate the facts of those cases into the instant 5 litigation. No policy or practical purpose would be served by the consolidation of these matters. In reply the Union asserted that it was not attempting to interfere with an ongoing investigation. Further, it was not intending to have an overlap of jurisdiction between this matter and those before Vice Chair Brown. The two investigations at issue have allegations that fall directly into the subject matter of the grievance before this Board. Consolidation would be efficient and appropriate. Finally, the Employer is not prejudiced because these investigations occurred years following the filing of this grievance. DECISION The Board has the jurisdiction to consolidate matters. Our Rules of Procedure make clear that the Board can consolidate two or more matters if there is a common question of law or fact, or when the relief claimed arises out of the same occurrence. It was said by Vice Chair Harris in Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU - (Samsone) GSB#2004-2855, "the purpose of consolidation is to make the best use of resources by saving time as well as reduce the risk of inconsistent findings." In my view, to allow the Union's request would increase, not diminish the risk of inconsistent findings. Therefore, I am declining the Union's request. The Employer asserted that it would be wrong at this stage of our proceedings to consolidate the Lamothe grievance or the Peckford grievance with the matter before this Board. I understand that view. I agree with the Employer's contention that Vice Chair Brown has the jurisdiction over the Lamothe grievance which the Union seeks to put before me. Even if that 6 were not the case, it would be virtually impossible for this Board to "carve out" the facts regarding the investigation from the discipline grievances that are before Vice Chair Brown. There would be much potential for an overlap of facts. Nothing good would be served and indeed, harm may well be done, to have two different Vice Chairs hearing virtually the same evidence and possibly making different findings about the same fact situation. At the time of the request, the investigation and management actions had not yet concluded in the Peckford matter. To consolidate this investigation would be premature. However, once concluded, if, like the Lamothe situation, various grievances are filed as the result of the investigation as well as discipline, I would be disinclined to take jurisdiction over what would be a "piece" of that situation for the same reasons set out above. F or those reasons, the Unions request is denied. Dated in Toronto, this 3rd day of December, 2007. e icity D. Brigg Vice-Chair