The URL can be used to link to this page

Home My WebLink About2021-2593.McGann et al.2022-12-22 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-2593; 2021-2594; 2021-2973 UNION# 2021-0526-0033; 2021-0526-0034; 2020-0526-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McGann et al) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Erin Buchner Morrison Watts Counsel FOR THE EMPLOYER Katherine Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING December 21, 2022 - 2 - Decision [1] This is a referral of three grievances under Article 22.16.1 of the Central Collective Agreement between the parties. [2] Article 22.16.1 provides for the resolution of grievances “in an expeditious and informal manner”. The mediator/arbitrator is to assist the parties in attempting to settle the matter. Should efforts be unsuccessful, the mediator/arbitrator is to determine the grievance by arbitration. In doing so, Article 22.16.1 provides the mediator/arbitrator may “limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate”. Decisions reached are without precedent unless the parties agree otherwise. Decisions are to be succinct and to be issued within five days of the completion of the proceedings. [3] Attempts to resolve these matters through mediation were unsuccessful. The expectation of the institutional parties is that if the case cannot be completed on the day of the mediation efforts, it will be completed on a second day. Accordingly, one further day will be scheduled to complete the hearing of these grievances. [4] Grievances 2021-0526-0033 (GSB File No. 2021-2593) and 2021-0526-0034 (GSB File No. 2021-2594) are individual grievances filed by Dag McGann. It is not apparent at this time that oral evidence will be required with respect to Grievance 2021-0526-0033. It appears with respect to Grievance 2021-0526-0034 that oral evidence will be required only with respect to whether other employees were permitted by the Employer to conduct COVID Rapid tests at the workplace and/or attend at the workplace prior to sending their test results. Having said that, the parties have yet to complete the process of pre-hearing production and particulars. [5] Grievance 2020-0526-0027 (GSB File No. 2021-2973) is a group grievance, filed under Article 22.11.1 of the collective agreement on behalf of nine employees. Article 22.11.1 permits a group grievance to be filed “in the event more than one (1) employee is directly affected by one specific incident or circumstance” (my emphasis). Only one member of the group attended at the hearing on December 21, 2022, despite the Employer having communicated to the Union its expectation that three members of the group attend the hearing as contemplated by Article 22.11.1. In response to questions from me, Union counsel disclosed that she had been unable to obtain instructions from the other members of the group. Accordingly, it is not apparent at this point which members of the group, if any, are directly affected by the issues raised by that grievance. - 3 - [6] Having regard to the representations of the parties, I make the following case management directions: (i) In relation to the individual grievances of Mr. McGann, the Union shall have until March 10, 2023 to provide all the particulars upon which it would seek to rely to the Employer. (ii) In relation to the group grievance, the Union shall have until February 17, 2023 to obtain full particulars from each member of the group. The Union shall advise the Employer forthwith of the members of the group who have provided particulars. The Union shall have until March 10, 2023 to provide the Employer with consolidated particulars. The Union’s consolidated particulars shall clearly identify the issues in dispute as identified in the individual particulars received and the remedies sought in relation to those issues. No consideration will be given to any other issues. (iii) The hearing will be held on August 10, 2023. The hearing shall be completed in one day. The Union and the Employer shall each have 3 hours to complete their case, inclusive of any time spent on oral evidence. (iv) The Union shall call Mr. McGann to give evidence, which evidence shall be limited to whether other employees were permitted by the Employer to conduct COVID Rapid tests at the workplace and/or attend at the workplace prior to sending their test results. Mr. McGann’s evidence in chief shall not exceed 15 minutes. The cross-examination of Mr. McGann shall not exceed 10 minutes. The re-examination of Mr. McGann shall not exceed 5 minutes. (v) The Employer shall call a management witness to give evidence, which evidence shall be limited to whether other employees were permitted by the Employer to conduct COVID Rapid tests at the workplace and/or attend at the workplace prior to sending their test results. The management witness’ evidence in chief shall not exceed 15 minutes. The cross-examination of the witness shall not exceed 10 minutes. The re-examination of the witness shall not exceed 5 minutes. (vi) The parties are to file with the Arbitrator a Joint book of documents in advance of the hearing date, August 10, 2023. The book of documents is to be in PDF format (“tabbed" with bookmarks). All documents will be received - 4 - into evidence without proof of authenticity but without prejudice to the position of either party as to admissibility or relevance. Statements contained in a document will be treated as the evidence of the person making the statement. (vii) The parties shall make best efforts to exchange books of authorities in advance of the hearing. Books of authorities are to be in PDF format (“tabbed" with bookmarks). (viii) Time limits set by this decision are not subject to modification on the agreement of the parties but may only be extended with leave of the Arbitrator. (ix) If the parties are unable to resolve any disputes about the adequacy of production of documents or particulars, if a party is seeking to lead any other oral evidence, or if there are any other preliminary issues, a pre-hearing conference call will be scheduled with counsel on the request of either party to hear submissions and decide the issue. Where the dispute relates to the production of a document, an un-redacted copy of the document shall be filed with the Arbitrator in advance of the conference call, along with a copy of any redacted version of the document which has been provided to the other party. No objections as to adequacy of production of documents or requests to lead other oral evidence may be made at the hearing without leave of the Arbitrator. Dated at Toronto, Ontario this 22nd day of December 2022. “Ian Anderson” Ian Anderson, Arbitrator