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Home My WebLink About2009-2078.Ewing.11-11-28 Decision Crown Employees rieva nce Settlement oard 1Z8 l. (416) 326-1388 x (416) 326-1396 t des griefs es employés de la t Z8 l. : (416) 326-1388 léc. : (416) 326-1396 UNION#2009-0517-0102 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ETWEEN G B Suite 600 180 Dundas St. West Toronto, Ontario M5G Te Commission de règlemen d Couronne Bureau 600 180, rue Dundas Oues Toronto (Ontario) M5G 1 Té Té Fa GSB#2009-2078 B Ontario Public Sployees Union Union (Ministry of Community Safety and Correctional Services) Employer ervice Em (Ewing) - and - The Crown in Right of Ontario BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Law FOR THE EMPLOYER Eric del Junco del Junco Counsel Services ractice Group Suneel Bahal Ministry of Government Labour P Counsel HEARING November 18, 2011. - 2 - Decision 1. On November 12, 2008, Mr. Chris Ewing, Correctional Officer, received a letter informing him that because he had engaged in inappropriate behavior, specifically sexual harassment, he was being suspended for a period of ten working days. Ten days later he was notified in writing that the Employer was of the view that the work environment was irreparably harmed and that the method it had chosen to “restore a proper work environment” was to transfer him from Maplehurst Correctional Centre to the Toronto West Detention Centre. It was noted that the transfer was not disciplinary in nature and was not reflective of his work as a Correctional Officer. 2. Mr. Ewing grieved both these actions and his requested remedy included, amongst other things, full compensation for the ten day suspension, a cleansing of all files and full compensation for all mileage and travel time spent as a result of the change of workplace. 3. Prior to the commencement of the hearing counsel for the Employer, Mr. Suneel Bahal, informed the Union that he intended to introduce into the evidence the Investigation Report written by Ms. Sharona Freudmann in this matter. It was also communicated that the Employer’s plan was to call Ms. Freudmann to provide viva voce evidence regarding her investigation. 4. Counsel for the Union, Mr. Eric del Junco, notified the Employer and the Board, via email a few days prior to our first day of hearing that the Union would object to the introduction of this evidence. It was decided that the first day of hearing would be spent arguing this objection. 5. The Union conceded that there has been an earlier Board decision regarding this issue but argued that it is manifestly wrong and for that reason should not be followed in this instance. In Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional Service & OPSEU (Gillis) (2005), 145 L.A.C. - 3 - (4th ) 205 (Abramsky), it was determined that evidence virtually identical to that at issue in the matter before this Board was admissible. It was suggested that a considerable disservice to both parties has occurred as the result of Re Gillis. 6. The Union adopted the arguments made before Vice Chair Abramsky suggesting that they should have been persuasive in the Re Gillis. In short, those submissions were that the report is a hearsay document; the report contains opinions and conclusions made by the investigator and those conclusions would usurp the Board’s role; and finally the report is highly prejudicial. 7. As in the case before Vice Chair Abramsky, the Union conceded that there may be portions of the report which might ultimately be admissible such as witness statements, particularly in the event of possible prior inconsistent statements. However, the appropriate method of proceeding is for the Employer to prove its case with direct evidence that will be subject to cross examination. 8. The Union submitted that Vice Chair Abramsky decided that she would admit the evidence but ignore it. If that is the case, why should this Board admit it in the first instance? In Re Gillis it was made clear that the investigator’s conclusions would not be adopted. Given that determination, it is a waste of time to hear the evidence. It is not sufficient that the Employer relied upon the contents of the report in its considerations for this Board to find the evidence admissible. 9. Finally, the Union stated that allowing this evidence will cause the Union to engage in a sustained attack upon the report and the credibility of the author. It is the grievor’s view that there was misconduct during the course of Ms. Freudmann’s investigation and therefore the report is completely useless evidence. 10. Not surprisingly, the Employer was of a different view. It was contended that Re Gillis was correctly decided and it is incumbent upon this Board to speak with one - 4 - voice. In any event the decision was certainly not manifestly wrong as suggested by the Union. 11. The Employer’s submissions also mirrored those made in Re Gillis. It was urged that the Board has the authority under Labour Relations Act to exercise discretion regarding admission of evidence and therefore can admit hearsay evidence even if that evidence would not be allowed in a court of law. That statutory framework allows Boards of Arbitration to determine the appropriate process to follow in the adjudication of grievances. 12. The Employer argued that the evidence at issue is relevant, which is the appropriate measure for determination of admissibility. It was conceded that it was incumbent upon the Employer to prove the misconduct occurred through direct evidence. However, the report and evidence of the investigator will provide a road map of the Employer’s evidence. 13. In reply the Union suggested that the Employer’s failure to make clear how the evidence at issue will assist this Board is telling. A road map is not an analysis or an explanation regarding the relevance of the evidence. 14. After consideration of these submissions, I must firmly disagree with the Union’s assertion that the decision of Vice Chair Abramsky is manifestly wrong. Indeed, I am of the view that it was correct and ought to be followed in this case. 15. In allowing this evidence to be called, Vice Chair Abramsky set out her rationale in a clear and concise fashion at page 4. She stated: …..In my view, the investigation performed by the Employer and which forms the basis for its decisions is relevant. The report contains witness statements and photographs which the Employer relied upon. It also relied upon the findings and conclusions of the investigator. Those findings and conclusions, to be clear, are not binding on me. My determination of whether the Employer has established just cause will rest on the evidence produced at the arbitration hearing, not the findings of fact and conclusions of the investigator. But that does not mean that the investigation report is irrelevant and inadmissible. The investigation - 5 - 17 undertaken by the Employer and how the Employer arrived at its decisions is relevant to these proceedings. In my view, admitting the investigation report does not taint the arbitration process or render the Board’s ultimate determination suspect. That view implies, incorrectly, that the Board would be unable to come to its own conclusions about the weight to be given to the evidence. A significant part of the job of an arbitrator – in every case – is to sort through evidence and determine what evidence is cogent and therefore should be relied upon, and what evidence should be ignored or given little weight. The fact that an arbitrator admits evidence which, at the end of the day, is given no weight does not taint the arbitration process. Although I agree with the Union that justice must not only be done but be seen to be done. I cannot agree that the admission of the investigation report would lead a reasonable person to conclude that justice has not been done. For the same reasons I cannot agree that the investigation report should not be admitted because of its potential “danger of prejudice.” Evidentiary prejudice is much more significant in jury trials than when a case is heard by a judge alone, or by a professional arbitrator. Again, arbitrators routinely weight evidence, and are capable of doing the same in regard to an investigation report. …….I also do not agree that the investigation report should not be admitted because it is, essentially a hearsay document. The report would only be hearsay if the Employer is relying on the content of the report for the truth of the matters asserted. That is not clear in the record, since the Employer stated that it will be called viva voce evidence to establish its case and would not be solely relying on the report. Furthermore, hearsay evidence is admissible in arbitration – with the weight, if any, to be determined based on indicia of reliability and necessity. 16. I adopt the reasoning of Vice Chair Abramsky. Indeed, I am of the view that it would be wrong to find that the investigator’s report relied upon by the Employer in this matter is irrelevant. Further, this Board is capable separating hearsay evidence from direct evidence. I also must disagree with the Union’s contention that the Employer’s failure to provide, at the outset, an analysis of how this evidence will assist the Board renders it inadmissible. Finally, it goes without saying that the amount of weight, if any, to be assigned to this evidence is a matter I will consider in my final deliberations. . I found it interesting that in Re Gillis, which was issued on December 7, 2005, it was noted that the investigation reports “are routinely admitted into evidence before the GSB and relied upon in the Board’s decisions.” The comment seemed to suggest - 6 - surprise that the issue was being raised as a matter of dispute where none had previously existed. I understand that apparent confusion as I also thought this issue was a matter of settled law at the Board. 18. There were a number of production issues discussed at the conclusion of these submissions. I reviewed those issues with the parties and it appeared that while not everything had yet been produced, there were no disputes regarding the Union’s entitlement to the requested documents. In the event that matters arise regarding production of documents, I direct counsel to inform the Board and a conference call will be held to hear and determine such disputes. Dated at Toronto this 28th day of November 2011. Felicity D. Briggs, Vice‐Chair