HomeMy WebLinkAbout2006-2863.Morsi.08-12-5 Decision
Commission de
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Grievance Settlement
règlement des griefs
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UNION#2006-0546-0058, 2006-0546-0059, 2007-0546-0003, 2007-0546-0004,
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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 & Revenue)
Employer
BEFOREReva Devins Vice-Chair
FOR THE UNIONEd Holmes
Ryder Wright Blair & Holmes
Barristers and Solicitors
FOR THE EMPLOYERJennifer Richards
Counsel
Ministry of Government Services
HEARING
October 30, 2008.
2
Decision
[1]The Union seeks an order requiring the Employer to disclose the assignment control
sheets, expense claims and time sheets for a large number of different employees. The
Employer previously agreed to disclose the requested documents for some of the named
individuals but maintains that the particulars that have been provided are insufficient to
support the requested disclosure for the remainder.
[2]The grievor conducts field audits for the Ministry of Finance. The original grievance
arose from her supervisor?s refusal to pay mileage from her home to the vendor where
she performed her audits. The grievances before me allege that the Employer has been
inconsistent in its application of the travel and expense policy both over time and within
the public service generally. Subsequent grievances relate to the use of a rental car or taxi
in the performance of her duties. She also alleges that she has been subjected to
differential treatment, discrimination and harassment.
[3]The grievor was initially reluctant to name individual co-workers in the particulars of her
allegations. An Order for full particulars was issued that included a directive to provide
the names of co-workers where relevant. Consequently, particulars have been provided
over the course of several months and are contained in a number of different pieces of
correspondence. The parties have also had several discussions regarding the sufficiency
of the particulars and the extent to which the Employer will comply with the Union?s
request for disclosure. A previous motion for disclosure was allowed in part and
permitted the Union to name the individual employees it alleged were treated differently
than the grievor. This motion arises from those further particulars.
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[4]The most recent particulars refer to all of the employees for whom disclosure is now
sought. Typically, these additional particulars do not specifically allege that the identified
employees were treated differently than the grievor. Rather, it only states that the named
employees were paid mileage expenses from home to the vendor and return to home. In
some instances the grievor was advised of this payment directly by the employee, in
others she was advised by a third party of the identity of employees that were reimbursed
for travel time and mileage expenses from home to vendor.
Submissions
[5]The Union maintains that all of the particulars that it has submitted to date must be read
together and that the most recent iteration, in which specific employees are named, must
be cross referenced back to the details of the grievor?s allegations set out in earlier
correspondence. The particulars have alleged differential application of the travel and
expense policy and the particulars now identify individual employees who have been
permitted to recover expenses that were denied to the grievor. Given the allegations, the
expense and travel claims of these employees meets the test of arguable relevance and
should therefore be disclosed. The Union referred me to OPSEU (Mustari et al) and
Ministry of Community Safety and Correctional Services (2007), GSB No. 2004-3890,
(Johnson).
[6]The Employer submitted that the particulars are insufficient to support the Union?s
request for disclosure. The Employer acknowledges that there are instances where
employees are permitted to travel directly from their home to the vendor and are paid
accordingly. Consequently, particulars that do no more than confirm this concession do
not support an allegation of differential treatment. The Employer submits that it should
not be put to the onerous task of producing the requested records without a direct link to
4
the specific allegations at issue. The Employer relied on the following decision of the
Board in support of its motion: OPSEU (Patterson) and Ministry of Children and Youth
Services (2007), GSB No. 2003-1588 et al, (Abramsky).
Decision
[7]The Union seeks disclosure of a significant volume of records. The Employer agreed to
disclose the requested claim forms for a limited number of employees; the Union seeks
further disclosure for an additional 24 individuals for periods spanning one to two years.
The Employer has accepted that if properly particularised, the documents requested
would be arguably relevant. Nonetheless, it maintains that the details provided do not
specifically allege how the named individuals were treated differently than the grievor. In
these circumstances, the Employer submits that it should not be put to the time and
expense involved in disclosing the records requested by the Union. The Union maintains
that the allegation of differential treatment was detailed in earlier versions of the
particulars and that all of the particulars, when read together, are sufficient.
[8]Having reviewed the particulars in their entirety, I am satisfied that they are sufficient to
warrant disclosure of the travel and assignment records for some of the employees listed.
The grievor has consistently maintained that there was a change in the application of the
travel policy so that she was no longer compensated for travel from home to the vendor.
In her most recent particulars, she cites a number of employees who have confirmed that
they were permitted to claim time and mileage from their home. Although the particulars
do not expressly repeat the allegation of differential treatment, I consider it reasonable to
read those particulars in the context of the earlier submissions. In my view this is not a
mere fishing expedition. Given the nature of her general allegation, I find that the travel
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and assignment sheets of these employees are arguably relevant to these proceedings. The
same reasoning applies to the taxi and rental car claims.
[9]There are also, however, a number of individuals for whom a similar inference cannot
reasonably be made. The grievor learned from third parties that some of her other
colleagues were paid from home to vendor. In none of these instances was there any
indication that any greater detail was given to the grievor or that the person who provided
the information actually possessed first hand knowledge of the pay claim or assignment
at issue.
[10]In a previous ruling, I indicated that I was sympathetic to the Union?s argument that
much of the information that might normally be provided by way of particulars is
uniquely in the possession of management. In light of that reality I indicated that I was
inclined to be generous in an assessment of the sufficiency of particulars in this case.
While I am generally sympathetic to the Union?s position, I am also mindful of the
significant time and expense required of the employer in searching for and then
disclosing all of the documents requested. Although I am prepared to read the most recent
particulars in the context of the earlier allegations, the grievor must still provide
particulars that offer a reasonable foundation or link to the allegation of differential
treatment.
[11]Where a fellow employee discussed the issue with the grievor and told her that they were
paid for travel from home to the vendor, they would be personally aware of whether they
had been assigned from home or the office. That is the relevant distinction in this case.
The issue is not just whether individuals are ever paid for travel from home but whether
they were or are always permitted to travel directly to the vendor from home, regardless
of where the vendor was located. Where a third party identified another employee as
6
someone they understood was paid for travel from home, it is not at all clear that they
would have known the relevant details and therefore whether it corresponded with the
grievor?s allegation of differential treatment. At that stage it becomes somewhat of a
guessing game. In that circumstance, I do not consider the particulars to be sufficient.
That is, where there is either a general statement, made by a third party that individuals
were paid from home to vendor or where the source of the information has not been
clearly identified the particulars are not sufficient to warrant the requested disclosure.
[12]The Union?s motion is allowed in part. In addition to those previously agreed, the
Employer will disclose the assignment control sheets, expense claims and time sheets for
the following employees for the time period identified in Union counsel?s letter of
October 3, 2008: James Chong, Tony Grech, Leo Herskovits, Hanipha Mohammed,
Maurice Gabay, Faleena Rawana, Sou Tajik, Mario Cerminara, Anna Lundrigan and
Terry Watson.
th
Dated at Toronto this 5 day of December 2008.
Reva Devins, Vice-Chair