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HomeMy WebLinkAbout2016-2838.Assenov.19-05-21 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# 2016-2838 UNION# 2016-0135-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Assenov) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Diane L. Gee Arbitrator FOR THE UNION Jennifer Micallef Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel HEARING May 15, 2019 -2- DECISION [1] This matter is a grievance dated November 22, 2016 filed by the Union on behalf of Iosko Assenov (the “grievor”) that reads as follows: I grieve that the employer has violated articles 2, 3, and 9 of the Collective Agreement, as well as any other applicable Articles, legislation, jurisprudence, and the Ontario Human Rights Commission. These violations have occurred and are ongoing. [2] This matter was scheduled to be heard on May 15, 2019. At the commencement of the hearing, the parties made submissions in respect of a number of preliminary issues. This decision deals solely with those preliminary issues. [3] The Union had requested production of log books and the Employer provided same in a redacted form. The Union requested unredacted copies which the Employer was willing to provide subject to restrictions. The Union was agreeable. Accordingly, at the hearing I ordered the Employer to provide an unredacted copy of the log books to the Union and further ordered as follows: i. The copy of the log books (hereinafter the “documents”) provided to the Union is to be maintained in the possession of Union counsel at all times and no copies, electronic or otherwise, are to be made. ii. The documents can be reviewed by the grievor and a union representative of the Union’s choice but only in the presence of Union counsel. iii. Union counsel, the grievor and the selected union representative are not to discuss the contents of the documents with anyone or to discuss the documents within the hearing of anyone with the exception that Union counsel may discuss the documents with a witness in which case the witness is to be advised of the restrictions set out herein and that they are required to comply with same. iv. The documents are for the purposes of this litigation and no other purpose. v. At the conclusion of the litigation the documents are to be destroyed except to the extent a copy needs to be kept to meet any professional obligations for counsel. [4] I hereby confirm my order as set out above. [5] The grievor had previously stated he had over 1,000 pages of evidence; much less than that had been produced to the Employer by the Union. The Employer sought an order that the Union produce all arguably relevant documents. The Union advised that the number of pages of evidence referenced by the grievor contained many duplicates and documents that are privileged. Counsel advised that she had reviewed all of the documents the grievor had and had produced to the Employer all that are arguably relevant. Having regard to the stipulation made by Union counsel no order for production was made. -3- [6] The Employer requested an order that the grievor return Ministry notebooks in his possession that he had removed from the Employer’s premises in contravention of Ministry policy. The Ministry had found that the notebooks were missing and became aware that they were in the grievor’s possession when copies of pages from the notebooks were reproduced in the Union’s Book of Documents. The grievor was ordered to return the notebooks to the Employer and I hereby confirm such order. [7] The Employer requested an order that documents contained within the Union’s Book of Documents that were not complete copies of the document; had been altered in any way; or bore highlighting and/or notations that do not properly form part of the document, be removed. Further the Employer asked for the removal of documents in the Book of Documents that pertained to the Windsor Jail given that no allegations arise out of the time the grievor worked at this institution. I made the orders sought by the Employer and hereby confirm same. The Union is not required to file a new Book of Documents unless it wishes to do so but is put on notice that the one filed will not be entered into evidence. Documents the Union wishes to enter into evidence are to be complete copies (unless the Union seeks to rely on only a portion of a voluminous document in which case exceptions are made), unaltered, with no handwritten or highlighted additions. [8] The Union will make a request of the Employer for the production of policies and/or Standing Orders that are arguably relevant to the issues in dispute. The Employer is directed to produce same to the Union upon such a request being made. [9] The Employer asks that paragraphs 118-120 and 126-130 of the particulars be struck as they relate to events that post-date the grievance. The Union agrees to strike paragraphs 127, 128 and 129 but objects to the remaining paragraphs being struck. [10] The paragraphs in question read as follows: 118. Also in November 2016, the Grievor interviewed for a regular full- time position as Program Support Clerk for the Ontario Disability Support Program (ODSP) in the Ministry of Community and Social Services. The Grievor also interviewed for a RPT position as Administrative Support Clerk for Probation and Parole (P& P). 119. During the interview for this administrative position, the assistant manager, Andrew Jackson, asked the Grievor if he would be interested in working as a fixed term Probation and Parole Officer on a temporary assignment and the Grievor told him that he would be. Mr. Jackson informed the Grievor that he would be in touch as soon as an opportunity came up for a fixed term P&P Officer which he expected to be within a few weeks. 120. When the Grievor did not hear back about either the P&P officer position or the administrative position, he called the manager at Probation & Parole, Susan Johnston, to inquire. After a few weeks of persistent -4- effort on the Grievor’s part, he was able to get in touch with Ms. Johnston. Ms. Johnston called the Grievor late one evening off of a private phone number. She informed him that he was not the successful candidate and this was because a manager at the SWDC had connected with her, she had been informed that he was on a medical leave and therefore could not be hired. This was a breach of the Grievor’s privacy as his medical information was shared. While Ms. Johnston had been very friendly during the interview process, the Grievor noted that she had become cold and dismissive following her discussion with a manager at SWDC. The Grievor felt that he was being discriminated on the basis of his disability. The Grievor sent follow up emails to Ms. Johnston in the weeks following their phone conversation but no response was received. Further, this “rule” was not applied consistently as the Grievor was later offered the position with ODSP while on the same leave. …. 126. The Grievor began his position at the ODSP on December 5, 2016. However, he could not focus on his work and was struggling with depression and anxiety related to his experiences at SWDC. …. 130. The Grievor went off of work on a medical leave in March 2017. He remained on leave until July 31, 2017. The Grievor’s physical and psychological ailments have been a direct result of the racism and harassment that he endured while working as a correctional officer. 131. On April 19, 2018 the Grievor was featured in an article by the CBC entitled “Racism, harassment rampant at South West Detention Centre, allege former correctional officers.” This article was posted on twitter by a former Colleague of the Grievor and numerous former and current correctional officers commented on how they believed that this was “fake news” as well as suggesting that “you are either with us or against us”. These public displays denying the racist treatment the Grievor suffered is further evidence of the kind of environment that the Grievor was required to work in. [11] The grievance is dated November 22, 2016. The grievor resigned from his employment as a CO with the Ministry of Community Safety and Correctional Services (CSCS) effective December 5, 2016 and commenced employment with another Ministry in the Ontario Disability Support Program (ODSP) that same day. The grievor worked at ODSP until on or about May 10, 2018 when he filed a further grievance (the “ODSP grievance”) which reads as follows: I grieve that the employer has violated article 2, 3 and 9 as well as any applicable articles, acts, legislations, or any other jurisprudence that apply. These violations have occurred and are ongoing. This pertains to violations stemming from SWDC Ministry of Corrections – Windsor, ON. -5- [12] The grievor has also filed an HRTO complaint which has been deferred until the outcome of this proceeding. [13] The Employer states it is prepared to defend itself against all allegations while the grievor was in its employ which it states ended December 2, 2016. To the extent that the particulars refer to matters that happened after the grievor’s employment with CSCS ended, they should be struck. [14] The Employer asserts that matters that occurred after December 2, 2016 fall outside of the scope of the grievance. The Employer cites the following quote from OPSEU (Hagopian) and Ontario (Ministry of Finance), March 13, 2019 (Gee): [19]. As argued by counsel for the Employer, the jurisprudence establishes that the test to be applied is whether, upon reading the grievance and/or participating in the grievance process, the Employer reasonably ought to have understood that the issue in question was part of the grievance. [15] The Employer argues that, because it did not know the grievor was interviewing with another employer, it could not “reasonably have understood the issue to form part of the grievance”. As such, paragraphs 118 -120 should be struck. [16] The Employer further argues that events that occurred after the grievance was filed on November 22, 2016, could not fall within the scope of the grievance. The ODSP grievance can deal with anything arising after he resigned from his employment with CSCS. The Employer states it has no knowledge of the events that the grievor alleges and that such events have no relationship to the grievance. Specifically, the events that underlie the allegations set out in paragraph 119 are not within the knowledge of SWDC and should be struck. The Employer takes a similar position with respect to paragraph 120 which speaks to events involving a manager at P & P. To the extent the grievor is able to identify the manager that he allegedly spoke to the Employer states that it could perhaps respond but he does not and this paragraph is all about P & P and has nothing to do with CSCS. There is no way the Employer could have known this was part of the grievance. There was no grievance meeting and thus the first the Employer came to know about this is when we received the particulars. It is outside the scope and vague. [17] With respect to paragraph 126, the issue of whether or not the grievor was able to do his work does not form part of this grievance; this is especially the case if the case is bifurcated such that a determination is made on the merits before dealing with any potential remedy. [18] The Employer asks for paragraph 130 to be struck on the basis that it falls under the second grievance. Similarly, paragraph 131 should be struck as the events happened well after the grievor left CSCS. These paragraphs should be dealt with in the ODSP grievance. -6- [19] In reply, the Employer states that much of the medical evidence that has been produced arises after November 22, 2016. To the extent the medical evidence post-dates November 22, 2016 the Employer says it is not relevant as only issues that arose during the time he was with CSCS are relevant. In the alternative, the Employer says that the paragraphs of the particulars dealing with the grievor’s medical are not admissible as, according to the line of cases beginning with Re OPSEU (Monk et al) v. Ontario (Ministry of Community Safety and Correctional Services and Ministry of Children and Youth Services) [2010] OGSB (Gray), I have no jurisdiction if his medical condition constitutes a workplace injury. The Employer submits that the medical issues are potentially relevant if you find there has been a breach of either the collective agreement and the Ontario Human Rights Code that does not constitute a workplace injury. The Employer argues the medical evidence may never be relevant but, if it becomes relevant the parties could deal with it at that time. [20] The Employer also relies on the following quote from Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Cross) 2015 CarswellOnt 12114: These allegations essentially post-date the filing of the group grievance. In the absence of agreement between the parties, I have a number of concerns about permitting allegations that post-date the filing of the grievance, as my jurisdiction arises from the appointment to hear the June 21, 2012 grievance, not any and all matters that may have occurred thereafter. [21] Having regard to my determination herein, I have not set the Union’s submissions out in full but rather have adopted portions of them in the course of my decision. For the reasons that follow I decline to strike the paragraphs from the particulars. [22] The grievance is dated November 22, 2016 and the grievor resigned from his employment with CSCS effective December 5, 2016. The allegations regarding the P & P position (paragraphs 118, 119 and 120) occurred after the grievance was filed and before the grievor’s last day of employment with CSCS. The allegations concerning the CBC article occurred at a point in time when the grievor was no longer employed by CSCS. The allegations are relied upon in support of a claim that he was subjected to discrimination and harassment while at CSCS not at ODSP; they could not be raised in the ODSP grievance. [23] With respect to the Employer’s argument that the paragraphs should be struck for being vague, it has been determined that, whether paragraphs of the particulars ought to be struck for failing to provide sufficient detail will be dealt with on May 29, 2019, after the Union has reviewed the Employer’s productions and advised the Employer of any additions to its particulars. Thus, I will not deal with the issue as to whether paragraph 120 ought to be struck for failing to provide sufficient details at this time. -7- [24] There is no jurisprudence I am aware of that has determined that evidence of events that occurred after the grievance has been filed that are alleged to be relevant to a finding of a pattern of harassment is not admissible. I note that this issue was not decided in Cross, supra. I would further note, as argued by the Union counsel, that the grievance in issue in this case does, on its face, state that the violations are “continuing.” The grievance thus states that it intends to include any incidents of harassment that may occur in the future. I would also note that no grievance meeting was held such that the Employer became aware of the events relied upon that pre-date the grievance, at the very same time it became aware of the events being relied upon that post-date the grievance. As such, there is no prejudice as a result of the Employer not having realized that the post-grievance events form part of the grievance until receipt of the particulars. Further, the test set out in Hagopian, supra, is not in respect of the alleged facts but rather the issue raised by the grievance and thus does not apply in this instance. Finally, if it is the case that the post-grievance events cannot be relied upon as harassment in and of themselves, they are potentially relevant to a determination as to the probability of the events that are properly within the scope of the grievance. For all of the above reasons, I decline to dismiss paragraphs 118, 119, 120 and 131 at this stage. This issue can be raised by the Employer in closing argument in which case it would then be decided in the full light of all of the evidence [25] I turn then to the Employer’s request that paragraphs 126 and 130 be struck. These paragraphs deal with the grievor’s medical state after he left the employ of CSCS. The Employer acknowledges that there is a potential basis on which these paragraphs may be relevant to the issue of damages. Even if a decision is subsequently made to bifurcate the hearing, the paragraphs remain relevant to a potential issue in dispute and hence are properly in the statement of particulars. [26] As discussed at the hearing, the May 22, 2019 hearing date is adjourned. The Union will advise the Employer on May 23, 2019 of any further particulars. The May 29, 2019 hearing date will be used to deal with the issue of whether the hearing ought to be bifurcated so that a determination is made on the merits of the case prior to hearing evidence going to any potential remedy. Thereafter, should issues with the sufficiency of the particulars remain, such issues will be spoken to. Dated at Toronto, Ontario this 21st day of May, 2019. “Diane L. Gee” ______________________ Diane L. Gee, Arbitrator