HomeMy WebLinkAbout2007-0514.Finnan.09-03-27 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#2007-0514, 2007-0515, 2007-0628, 2007-0899, 2007-2415, 2007-2416
UNION#2007-0429-0001, 2007-0429-0002, 2007-0429-0003, 2007-0429-0004, 2007-0429-006,
2007-0429-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Finnan)
Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFOREReva Devins Vice-Chair
FOR THE UNIONTim Hannigan
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
FOR THE EMPLOYERBrian Loewen
Ministry of Government Services
Counsel
HEARINGMarch 24, 2009.
Decision
[1]This matter arises from the grievor?s discharge from employment following her allegations
of improper workplace conduct. The Employer and an independent third party investigated
these assertions and concluded that the complaint was unfounded and brought maliciously.
Prior to her discharge, the grievor had also filed several other grievances that relate to the
manner in which her concerns were addressed and issues regarding her treatment by
management.
[2]Two preliminary issues were raised at the commencement of the hearing: both parties
sought further particulars from one another and the Employer sought an order that the
grievor not be permitted to record the proceedings. Counsel further advised that they had
reached agreement on the order of proceeding. It was agreed that the Employer would
begin with their evidence in support of the grievor?s discharge, the Union would respond
and would lead evidence regarding the other grievances, the Employer would reply on the
discharge grievance and respond on the remaining grievances, and the Union would
conclude with reply on the non-termination grievances.
[3]Both parties consented to the request for further particulars during the course of argument.
Employer counsel agreed to provide further and better particulars of the basis for the
grievor?s discharge and the Union agreed to clarify its particulars and particularise what
remedies were being sought. Counsel agreed to provide particulars as soon as possible,
reserving the right to seek further disclosure.
[4]Union counsel did request that the hearing not be delayed and that the arbitration proceed
on the next scheduled day. The Union suggested that they could provide their particulars
within the next day or two. Employer counsel anticipated he might require a longer period
of time to provide further particulars. He also submitted that the parties had only just
agreed on the order of proceeding and that continuation on March 31 did not allow enough
2
time to provide the particulars, obtain further disclosure if necessary or afford sufficient
time to prepare the Employer?s case.
[5]With respect to the recording of these proceedings, the Employer submitted that the
grievances originate from a WDHP complaint of a highly personal nature. The sensitive
nature of the evidence was implicit in a pre-hearing Order in which Vice Chair Leighton
ordered that documents produced by the Employer with regard to this grievance procedure
not be used for any other purpose. Consequently, it was submitted that it would be
antithetical to the process to permit videotaping of the evidence.
[6]The Union confirmed that it was not requesting that the proceedings be recorded and noted
that it had not been involved in any proceedings before the Board where recording had
occurred. It took no position on the grievor?s request to record the proceedings, noting only
that it recognised that the Board controlled its own process and it was content to leave the
matter in the Board?s hands.
Decision
[7]The issue of further particulars has been resolved on consent. The two issues that remain
for my consideration are when will this matter resume for hearing and when it does, can the
grievor record the hearing?
[8]This is a discharge case and therefore every effort should be made to ensure that it is
completed as expeditiously as possible. I am therefore sympathetic to the Union?s desire to
ensure that this matter not be delayed unnecessarily. Nonetheless, counsel have estimated
that ten to fifteen hearing days will be required to complete all of the evidence and
argument in this matter. Three days have been scheduled to date, one in less than a week?s
time and two in late April. Many more hearing dates must be scheduled. Realistically,
there is no prospect that this matter can or will be concluded in the near future. In light of
that reality, I accept the Employer?s position that proceeding on March 31 does not afford
sufficient time to complete all of the required pre-hearing steps and prepare for this case.
This matter will therefore reconvene on April 22, 2009.
3
[9]I would also allow the Employer?s motion to prevent the grievor from using an audio or
video tape recorder at the arbitration. I am not aware of any instance in which this Board
has permitted individuals to record the proceedings for their own use. In my view, there are
general concerns regarding the integrity of the process that are engaged if an unofficial
?record? is permitted. Recordings can be easily manipulated and the recording process itself
might be disruptive or intimidating, at a minimum, it would arguably require the consent of
every witness. In this case, there are specific concerns that arise from the highly personal
nature of the allegations at issue. In our current technological age, undue risks should not
be taken with the privacy interests of other individuals captured in the hearing process.
Everyone at the hearing is entitled to make their own notes, however, I do not consider it
appropriate to permit the recording of the proceedings on video or audiotape. I would note
that there was no suggestion that this request was made as a form of accommodation; if it
were, other considerations might well have applied.
[10]The grievor is directed not to bring or use a recording device at arbitration.
th
Dated at Toronto this 27 day of March 2009.
Reva Devins, Vice-Chair
4