HomeMy WebLinkAbout2006-2863.Morsi.08-10-31 Decision
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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
BEFOREVice-Chair
Reva Devins
FOR THE UNION
Ed Holmes
Ryder Wright Blair & Holmes
Barristers and Solicitors
FOR THE EMPLOYER
Jennifer Richards
Counsel
Ministry of Government Services
HEARINGOctober 21, 2008.
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Decision
[1] On August 27, 2008, I issued an Order requiring the Union to provide full and sufficient
particulars. The Order included a specific direction to supply the names of co-workers
who were told about the grievor?s grievances, including the dates of each occurrence.
[2] Further particulars were provided, however, the grievor declined to disclose the names of
her co-workers. Through counsel, she indicated that she would not provide these names
until she received written assurances from management that there would be no reprisals
and until she obtained the individual employees? authorisation to release their names. The
Employer now seeks dismissal of the allegations that relate to these particulars.
Submissions
[3] The Employer submitted that the Union has breached a direct order of the Board and
consequently the allegations that are insufficiently particularised should be dismissed.
The Board?s Order did not set any preconditions for compliance. It did not contemplate
written assurances from management nor did it require authorisation from the individuals
at issue. The Employer maintained that it was well aware of its obligation to comply with
the Collective Agreement and it does not intend to provide the assurance requested by the
grievor.
[4] In light of the grievor?s outright refusal to provide full particulars, in the Employer?s
submission, the appropriate outcome is that the unparticularised allegations be dismissed.
The Employer relied on the following decisions of the Board in support of its motion:
OPSEU (Klonowski et al) and Ministry of Finance (2002), GSB No.1799/99 (Fisher);
OPSEU (Singh) and Ministry of Community Safety and Correctional Services (2005),
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GSB No. 2001-1070, (Abramsky); OPSEU (Gates et al) v. Ministry of Health and Long
Term Care (2006), GSB No. 2005-3003 et al (Dissanayake).
[5] The Union reiterated concerns previously expressed by the grievor. The grievor continues
to believe that her co-workers will be subject to reprisals by management if their names
are disclosed at this time. She spoke to her colleagues in confidence and they have since
expressed concern regarding possible reprisals. The Ontario Human Rights Commission
has also told the grievor that she does not have to reveal the identity of her colleagues in
the proceedings currently before it. Therefore, she believes that she should not be
required to do so by this Board.
[6] In the circumstances of this case, the Union submits that the grievor should be excused
from the terms of the Order for full particulars. That is the only relief that the Union
advanced.
Decision
[7] These parties have engaged in longstanding discussions regarding the sufficiency of the
particulars in this matter. Ultimately, a motion for particulars was brought by the
Employer and fully argued by both parties. The Board issued an Order which the grievor
now seeks to ignore. Despite an express order to the contrary, she refuses to provide
details related to some of her allegations.
[8] The Employer therefore seeks relief from defending against allegations that are not
sufficiently detailed. It has not sought dismissal of any of the grievances in their entirety
but only those portions that relate to the grievor?s refusal to comply with the order for
particulars. No alternative has been suggested by the Union other than excusing the
grievor from complying with the terms of my previous Order.
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[9] The Union submits that the grievor need not comply with my previous Order because of
her strongly held belief that she needs to protect her colleagues and because the Order is
at variance with the process used at the Human Rights Commission. Both of these
arguments were advanced without success on the original motion for particulars. At page
4 of my Decision I concluded as follows:
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 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 parallel proceedings 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.
[10] In my view, there is no basis to excuse the grievor from the clear terms of the Board?s
Order. In this instance I agree that the appropriate remedy is to dismiss the allegations
that remain insufficiently particularised. The Union has not advanced any new arguments
and has relied on arguments that were previously considered and rejected. I appreciate
that the grievor has not changed her view, however, that does not relieve her from either
complying with the Order for particulars or accepting the consequences of non-
compliance.
[11] Parties are entitled to expect that Orders of the Board will be respected. It is antithetical
to the fair and expeditious administration of these proceedings to permit the grievor,
Union or Employer to unilaterally determine which portions of the Board?s order it will
follow. I have already considered the grievor?s concern regarding disclosing the identity
of her co-workers and determined that it did not warrant an exception from the obligation
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to provide full particulars. Regardless of whether the grievor continues to have
reservations, the Order of the Board remains outstanding.
[12] The Employer?s motion is allowed. The allegations that relate to the grievor?s co-workers
being informed of her grievances are dismissed.
st
Dated at Toronto this 31 day of October, 2008.
Reva Devins, Vice-Chair