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Home My WebLink About2017-1792.Manna et al.19-08-01 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# 2017-1792 UNION# 2017-5112-0229 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Manna et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING July 26, 2019 -2- DECISION [1] This Grievance came before me under s.22.16 of the Collective Agreement. The Grievance alleges that the Employer violated the Collective Agreement and other applicable legislation by requiring Registered Nurses, at the Toronto South Detention Centre and the Toronto Intermittent Centre, to be available to respond to emergencies at all times including while on their unpaid breaks. The Grievors allege that this requirement resulted in them not being compensated for time worked during unpaid breaks and often resulted in their shifts being extended by 30 minutes. As noted in my Decision of January 24, 2019, the parties settled this Grievance on July 26, 2018 by creating a new scheduling practice using a Compressed Work Week Arrangement. However, the issue of what damages, if any, may be owing for retroactive compensation was not settled and is now before me in this arbitration. [2] On January 24, 2019 I issued a Decision ordering the Union to provide various particulars to the Employer by May 17, 2019 including “A list of all shifts between July 25, 2017 and July 26, 2018 listed by date where the Grievors were required to work during their unpaid breaks and were not compensated.” On July 26, 2019 I met with the parties to discuss preliminary issues arising out of my January 24, 2019 Decision. The Union shared its particulars that were provided to the Employer on May 17, 2019 which did not include the list that I had ordered, other than a list of dates and shifts provided by one Grievor. The Union explained that the Grievors had reviewed their records and determined that they had not recorded specific dates and times of breaks which they had missed. The Union advised that the Grievors could provide the information required by my January 24, 2019 Decision if they were given access to their sign-in sheets which are in the possession of the Employer. As a result, the Union has sought an order for production of time sheets/sign-in sheets for the Grievors between the period of July 25, 2017 to July 26, 2018. [3] The Employer is refusing to disclose the production of sign-in sheets for a number of reasons arguing that such disclosure amounts to a fishing expedition where the Union has failed to provide sufficient particulars as required by my January 24, 2019 Decision. The Employer notes that because the Union identified its position regarding unpaid breaks in an email to Management from the Union President on July 21, 2017 the Grievors should have kept a record of shifts where they were required to work during their unpaid breaks and cannot now use the information contained in the sign-in sheets to make its case. In addition, the Employer maintains that the information contained in the sign-in sheets is unhelpful because the sign-in sheets do not disclose what each Grievor did during a 30-minute unpaid break. The Employer claims that producing the sign-in sheets for the one-year period requested is not only onerous on the Employer but would also unnecessarily complicate the proceedings. -3- [4] The arbitral law on the factors that govern a request for disclosure is settled, and is summarized in the decision in Re West Park Hospital, (1993) 37 L.A.C. (4th) 160 (Knopf). At p. 167, the Board wrote: “Where the disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition” Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board should be satisfied that disclosure will not cause undue prejudice.” These factors have also been confirmed as the appropriate test for production to be relied upon as noted in the GSB Decision in OPSEU and the Crown in Right Ontario (Ministry of Community and Safety Correctional Services), 2018 CanLII 77322(Gee) (On GSB). [5] Considering the production of sign-in sheets being sought, I find that the information contained in them is arguably relevant and has a clear nexus to the issue of compensatory damages that is in dispute. While the information contained in the sign-in sheets may not disclose what an employee did during the 30-minute unpaid break, they do provide a record of the length of shifts and whether an employee left the institution during a shift and is a document used to determine pay for each shift. The determination of whether any retroactive damages may be owing would likely include the need to review schedules and shifts and arguably the record of sign-in sheets. [6] Dealing with the second factor of whether the information requested has been particularized, the Employer relies on OPSEU (Patterson) and Ontario (Children and Youth Services), 2007 CanLII 14609 (Abramsky) (ON GSB) and OPSEU and Ontario (Ministry of Community and Safety and Correctional Services), 2006 CanLII 31463 (Briggs) (ON GSB). In those cases, the Arbitrators refused disclosure requests that were broad and did not provide the “who, what, what where and how” of the allegations on which the Union intended to rely. For example, the Patterson case involved a claim of discrimination relating to the denial of a request for compassionate leave. In that case the Union provided specific information about one other employee’s request for compassionate leave but asked for records, dating back three years, of other examples where requests for compassionate leave were allowed. The Arbitrator in Patterson found, other than the detail of one other employee’s experience, Union’s request was broad and was not supported by any details to support the basis of the request. -4- [7] Considering whether the Union’s request in this case has been particularized, I find that the Union has provided sufficient particulars to warrant disclosure of the sign-in sheets. In the Union’s May 17, 2019 memo to the Employer, the Union explains that the Grievors were repeatedly required to work an extra half hour and/or be ready and available to work an additional half hour for which they were not compensated during the time period between July 25, 2017 to July 26, 2018. In addition, the Union has shared some particulars about one Grievor and has shared information and email correspondence where it brought the issue to the Employer’s attention. [8] I also find the Union’s request does not amount to a fishing expedition. The sign- in sheets are a record of the shifts filled out by the Grievors that are in the Employer’s possession and may assist the Union to confirm dates and times of the shifts worked. This case differs from the decision in OPSEU(Tone) and the Ministry of the Solicitor General and Correctional Services, 2000 CanLII 20479 (Dissayanake) (ON GSB), where the Arbitrator refused to order disclosure of other incidents of discipline involving other employees in similar circumstances to the grievor. In the Tone decision, the Union was seeking information that pertained to other employees in order to find examples of evidence to support its case. In the case before me, while the Grievors may not have kept records of the shifts that they worked, the sign-in sheets provide confirmation of their attendance at work. Seeking this disclosure of sign-in sheets that the Grievors submitted differs from requesting information that would not have been known to them in order to determine if there may be other evidence to support their case. [9] I also find that this request will not cause undue prejudice to the Employer. The request for disclosure is for a specific time period and the Employer has these records in its possession. While I am mindful of the Employer’s concern that sharing the sign-in sheets with the Union may complicate the proceedings, it will be incumbent on the Union to review the disclosure and provide further particulars of its case. [10] Within 45 days of this Decision, the Employer is directed to provide the Union a copy of the sign-in sheets for the period of July 25, 2017 to July 26, 2018. The parties have also agreed to participate in a conference call with me on August 27, 2019 at 10:00 a.m. in order to review any further preliminary issues and to discuss next steps for managing the hearing. Dated at Toronto, Ontario this 1st day of August, 2019. “Dale Hewat” ______________________ Dale Hewat, Arbitrator