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HomeMy WebLinkAbout2006-2863.Morsi.08-08-27 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2006-2863, 2006-2864, 2006-2869, 2006-2870, 2006-2871, 2006-2872, 2007-0235, 2007-1321, 2007-1323, 2007-1324, 2007-1498, 2008-0711, 2008-0712, 2008-0713, 2008-0714, 2008-1127, 2008-1128, 2008-1129, 2008-1130, 2008-1468 UNION#2006-0546-0058, 2006-0546-0059, 2007-0546-0003, 2007-0546-0004, 2007-0546-0005, 2007-0546-0006, 2007-0546-0008, 2007-0546-0026, 2007-0546-0027, 2007-0546-0028, 2007-0546-0032, 2007-0546-0053, 2008-0546-0006, 2008-0546-0007, 2008-0546-0008, 2008-0546-0010, 2008-0546-0011, 2008-0546-0012, 2008-0546-0013, 2008-0546-0014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Morsi) Union - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFOREReva Devins Vice-Chair FOR THE UNIONEd Holmes Ryder Wright Blair & Holmes LLP Barristers & Solicitors FOR THE EMPLOYERJennifer Richards Counsel Ministry of Government Services HEARING August 19, 2008. 2 Decision A motion was brought by the Employer for an Order dismissing these grievances for failure to provide sufficient particulars or, in the alternative, an Order for further particulars. The Union brought motions for an Order for disclosure and for consolidation of five additional grievances. Prior to completion of the argument on the preliminary matters, counsel advised that they had reached an agreement with respect to the Union?s motion and would therefore only require a decision on the Employer?s requests. The parties agreed that the Union?s disclosure motion would be held in abeyance pending the Board?s decision on particulars and implementation of that decision if necessary. It was further agreed that five additional grievances, filed between May 20, 2008 and August 19, 2008, would be consolidated for hearing with the current list of grievances. Any grievances filed after August 19, 2008 would not be consolidated. Background The grievor has filed a number of grievances dating from November 28, 2006; a total of 20 grievances are scheduled for arbitration commencing October 21, 2008. The grievances raise several issues, however, they can generally be described as allegations of differential treatment, discrimination and harassment. The Union provided written particulars by letter dated May 6, 2008 in which it asserted that there were several specific instances where the grievor was treated differently than other employees. No further details were provided, in particular, the names, time frame and other details were omitted. Counsel for the Employer sought further particulars, providing a detailed set of questions regarding the ?who, what, when and how? of the grievor?s allegations. The grievor has refused to provide these details. Submissions The Employer submits that the grievor has failed to sufficiently particularize her grievances and that the Employer cannot investigate, respond or assess the strength of its case. It was the Employer?s view that the grievor was aware of the obligation to provide particulars and has simply refused to supply the required information. It was submitted that in these circumstances, the grievances should be dismissed. The Employer referred to the following cases in support of its submission: Chyczij and Ministry of Labour (2001), PGSB # 0017/00 (Maeots), p. 2 and 3; 3 OPSEU (Klonowski) and Minister of Finance, (2002), GSB # 1799/99 (Fisher); OPSEU (Giannou) and Management Board Secretariat (1997), GSB # 570/96 (Leighton). In the alternative, if the grievances are not dismissed, the Employer seeks an order for full and sufficient particulars to be delivered in sufficient time to permit it to adequately prepare its case before the next scheduled day of hearing. The Union objects to the issuance of either order. Counsel advised that it was the grievor?s genuinely held belief that her co-workers will be exposed to possible retaliation by the employer if she discloses their names in advance of the arbitration of her grievances. She intends to provide all of the necessary details during the course of her evidence, but is reluctant to do so any earlier. The grievor has also filed a human rights complaint; the investigation of her human rights complaint does not require her to disclose the names of those she believes received differential treatment. Counsel suggested that the procedure in this parallel proceeding should be respected. In any event, the Union disputes the insufficiency of the particulars, arguing that the names of individuals it believes were treated differently than the grievor are set out in its disclosure request. The Union acknowledged that it did not provide any individual names or details in its direct response to the request for particulars. Nonetheless, counsel suggested that the names of the relevant individuals can be inferred from the list of co-workers for whom employment records have been sought. It was the Union?s submission that the particulars that have been provided, coupled with the names set out in its disclosure request, are sufficiently detailed and that no further particulars should be required. If the Board does determine that the particulars are insufficient, the Union maintains that the grievor should be permitted to forward the necessary information before her grievances are dismissed. The Union argued that the cases cited by the employer are all distinguishable: they were all cases in which an Order for particulars was issued and ignored, or where there was lengthy notice that the Employer would seek dismissal of the grievances. In this case, there has not been an Order for particulars and the Union only recently received notice of the Employer?s intention to move for dismissal. 4 Decision The collective agreement, in Article 22.14.4 confirms the need for ?disclosure of the issues in dispute as alleged by a grievance advanced by the Union ?? This Board has consistently found that the employer is ?entitled to know the case that it is required to meet? and that the obligation to provide particulars includes receiving ?an answer to the questions ?when?, ?where?, ?how? and ?who? from the party making the initial allegations?. In the instant case, the grievor has declined to particularise significant elements of her allegations. She has asserted that the Employer has treated her differently than her co-workers but she has not provided the specifics of the differential treatment. She has not provided names, dates or the precise manner in which her colleagues received preferential treatment. These deficiencies are not rectified by the list of names set out in the Union?s disclosure request. The Employer is entitled to receive a clear statement of the allegations against it, including all relevant particulars. It is not appropriate that it be required to guess or infer from other materials what case it must meet. There are numerous allegations and I fail to appreciate how the employer could determine, based on the material that has been provided, which individual relates to which allegation or the dates for the alleged occurrences. Nor do I accept the Union?s argument that the omissions in its particulars are justified by the grievor?s sincere beliefs. There are other safeguards to ensure the integrity of the process. I appreciate that the grievor?s genuinely believes that she is protecting her colleagues, however, her refusal to identify them is at odds with her obligation to provide a detailed description of her allegations. Finally, whatever the process might be in a parallel proceeding such as the Human Rights Commission, it does not alter the parties? obligations in these proceedings. These grievances are to be determined at arbitration before this Board where full and sufficient particulars are required to ensure a fair and expeditious hearing. Having considered the submissions of the parties, I am satisfied that the particulars provided to date are insufficient. I am not prepared, however, to dismiss the grievances. In my view, the appropriate remedy is an order for further particulars. I therefore allow the Employer?s motion in part and order the Union to provide sufficient particulars by September 15, 2008 of the discriminatory and differential treatment alleged, as requested in Ms. Richardson?s letters of May 12 and 22, 2008. The particulars will generally include the names of all individuals that are 5 alleged to have been treated in a manner different than the grievor, with dates of these occurrences. Specifically, the further particulars will include, but are not limited to: 1.The names of all individuals the Union alleges were treated in a manner different than the grievor regarding mileage and expense claims and the dates of each occurrence; 2.The names of all individuals the Union alleges were treated differently than the grievor in meetings with management and the dates of each occurrence; 3.The names of all individuals who where treated differently than the grievor with respect to accommodation requests and the dates of each occurrence; 4.The name of the individual who was permitted to take a Ministry car home and the dates of each occurrence; 5.The names of co-workers who were told about her grievances, and the dates of each occurrence; 6.The names of other individuals who were provided with light audit bags and the date of each occurrence; 7.How and when Mr. Lucas continued his reprisals against the grievor; 8.Full particulars of the allegations of poisoned work environment, including who made the alleged comments, the time and place that the comments were made, and the manner in which the comments were made. For clarity, the Union is also ordered to provide full and sufficient particulars of the ?who, what, when, where and how? of the five additional grievances that were consolidated on consent on August 19, 2008. th Dated at Toronto, this 27 day of August. Reva Devins, Vice-Chair