The URL can be used to link to this page

Home My WebLink About2022-0880.McGann.2023-04-03 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# 2022-0880; 2022-4338 UNION# 2022-0526-0006; 2022-0526-0017 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) Union - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE Ian Anderson Arbitrator FOR THE UNION Adam Veenendaal Morrison Watts Counsel FOR THE EMPLOYER Katherine Ayers Treasury Board Secretariat Legal Services Branch Counsel HEARING March 24, 2023 - 2 - Decision [1] This matter involves the referral of one grievance, under Article 22.16.1 of the Central Collective Agreement between the parties: Grievance No. 2022-0526- 0006; GSB File No. 2022-0880. On the agreement of the parties, a second grievance referred under Article 22.16.1 (Grievance No. 2022-0526-0017; GSB File No. 2022-4338) is hereby consolidated to be addressed with this matter. Both are individual grievances of Dag McGann. [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 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, unless the Parties agree otherwise. [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] Grievance No. 2022-0526-0006 challenges an eight day suspension imposed on the Grievor by the Employer on January 19, 2022 with respect to his alleged failure to comply with the Ontario Public Service COVID-19 Safe Workplace Directive by not taking and providing test results prior to attending the workplace on November 9, 10, 12 and 16, 2021. On each of those days, the Grievor was treated by the Employer as being on an unauthorized leave without pay. The Grievor filed a separate grievance with respect to the fact that he was placed on an unauthorized leave without pay on those specific dates: Grievance No. 2021-0526-0034. That grievance was also referred to arbitration under Article 22.16.1. [5] Grievance No. 2021-0526-0034, dealing with Grievor’s placement on a leave without pay, was one of the grievances that was the subject of a case management decision by the GSB, dated December 21, 2022, and has been scheduled for a hearing before me on August 10, 2023. - 3 - [6] Some of the evidence in relation to Grievance No. 2021-0526-0034 may be relevant to Grievance No. 2022-0526-0006. Therefore, the parties have agreed that any evidence from the hearing of Grievance No. 2021-0526-0034 shall be considered as having been admitted as evidence in relation to Grievance No. 2022-0526-0006. [7] While production has not been completed, it appears that most if not all of the facts in relation to Grievance Nos. 2022-0526-0006 and 2022-0526-0017 are recorded in various documents and will not be in dispute. [8] Having regard to the representations of the parties, I make the following case management directions: (i) On or before October 20, 2023, the Employer shall complete its production of documents to the Union and also provide the Union with a brief statement of the material facts upon which it intends to rely (including a reference to any relevant document) and a brief statement of material facts contained in those documents which it disputes. (ii) On or before November 10, 2023, the Union shall produce to the Employer any additional documents and also provide the Employer with a brief statement of any material facts contained in the Employer’s documents which it disputes and a brief statement of any additional material facts upon which it would seek to rely (including a reference to any relevant document). (iii) On or before December 1, 2023, the Employer shall provide the Union with a brief reply statement identifying any material facts in the Union’s production or statement of material facts which it disputes and any additional facts upon which the Employer would rely in reply (including a reference to any relevant document). (iv) On or before December 15, 2023, each party shall give notice to the other party of any witness they intend to call to give oral evidence and provide a brief statement of their anticipated evidence. (v) On or before December 15, 2023, each party shall also give notice to the other party of any disputed material statement contained in the book of documents for which they require the other party to call a - 4 - witness. If called, such a witness may simply adopt the statement, with or without modification, as their evidence-in-chief. If no witness is called, the statement may be given little or no weight as determined by the Arbitrator having regard to relevant factors including the materiality of the dispute and the reasons for not calling the witness. (vi) On or before January 8, 2024, the parties are to file with the Arbitrator a Joint book of documents for use at the hearing. The book of documents is to be in PDF format (“tabbed" with bookmarks). All documents in the book of documents will be received into evidence without proof of authenticity but without prejudice to the position of either party as to admissibility or relevance. Subject to what follows, statements contained in a document will be treated as the evidence of the person making the statement. The weight to be given to that evidence will be determined by the Arbitrator having regard to relevant factors including: • The circumstances in which the statement was made; • Whether the statement is based on first hand knowledge or information and belief; and • Whether the statement is with respect to facts which are reasonably capable of belief or is a conclusion or opinion. (vii) The hearing will be held on January 22, 2024. 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. Oral evidence, if any, inclusive of all evidence-in-chief, cross-examination and re-examination, shall be limited to 30 minutes in total for each party. (viii) The Employer shall proceed first at the hearing with respect to both grievances. Having regard to the fact that the Union bears the onus with respect to Grievance No. 2022-0526-0017, the Employer shall be afforded an expansive right of reply. (ix) 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). - 5 - (x) 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. (xi) If the parties are unable to resolve any disputes about the adequacy of production or 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 other procedural or preliminary issues may be made at the hearing without leave of the Arbitrator. Dated at Toronto, Ontario this 3rd day of April 2023. “Ian Anderson” Ian Anderson, Arbitrator