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HomeMy WebLinkAbout1979-0028.Sukhu.81-12-04IN THE XATTER OF AX ARBITPATION THZ CRCNN EMPLOY%ES COLLECTI~VE BARGAINING ACT Before THE GRIEVANCE S;ETTLEI\!ENT BOARD Before: Griever The Crown in Right cf Ontario (Ministry of Correctional Services) r;mpl0pr Prof. R. J. Roberts Vice Chairman MS. S. D. Kaufman Hember Nr. I. S.&cGregor Member For the Griever: Mr . R. Anand, Counsel Cameron, Brewin & Scott For the Employer: Mr. M. Chitra, Counsel Legal Services Branch Ministry of Correctional Services Hearing : September 4, 1981 At the commencement of the hearing in this case counsel for the Union, The Ontario ?ublic Service Zmiipioyees' Union, indicated that he xas not prepared to go forward with respect to one of two grounds upon which the griever :<as disciplined because the Cmployer, The Crown In Right of Ontario, ?linistr:? of Correctional Services, had persisted over a considerable period of time in refusing to suppiy :him particulars regarding that ground. Counsel for the Union thereupon requested permission to make a motion to the Board whic‘n bias in the nature of a motion to strike the ground for discipline regarding iihich particulars had been refused. Counsel for the Employer argued that there was no basis upon which the 3oard could grant s'xh a motion. s-;e s.&n'~~d ,-ii-- that the Employer had no duty to provide particulars to the Union regarding the disputed ground because the ground as set forth by the Employer in its letters to the griever and elaborated during grievance meetings was specific enougi to enable the Union to meet the allegation therein. In t:1is regard, counsel for the Employer pointed out that the infcma- tion in the Employer's letter was sufficient to direct 9.2 griever to the behaviour in question and khat s.xhbeha-iio-r :~a= fully discussed at the two grievance meetings between t:he Employer and the Union. Further, counsel indicated t::zt c,r. the day before the hearing he had provided counsel for the Union:githa statement of at least one T,<itF.ess .><kJC :qoui& & testifying regarding this gr0ur.d. tipon due consideration of the evidence and arqu.mezt of the parties, we conclude that the motron to strike must fail. No basis has been shown upon which to grant to the i'nion such a drastic re.medy. At most, the Union mlgnt :have been entitled 1. to an adjournment to enable it to prepare its case based * upon particulars required by the aoard. In this regaid, we decline to issue an order requiring the Employer to supply the particulars that counsel for the Union demanded. Ye do :ecom~~-J . -..-I however, that within a reasonable time before the nex% hearing date, counsel for the Employer supply to counsel'for the Union a statement of the material facts relating to the "when, .&here, 'what and who" of this ground for discipline. Such an ~ct;on A - should put to rest any lingering doubt that the griever had >ot been given adequate opportunity tomeetthe 'case against him. Insofar as the evidence to date sSows, the facts Of this case are as follows. On July 2, i979, the'grievor was involved in an incident that occurred in the Read Shift Officer's Office/Control Room area of the Nimico COrreCtiOnal Centre. On July S, 1979, Mr. Carl C. De Grandis, the Superintendent of the Centre wrote a letter to the grievor which contained ~two allegations against him. Apparently, these were (1) that "you assaulted Xr. R. Kennedy, Head Shift Officer"; and, (2) that "your conduct during this incident was not consistent with the expectations of an employee of this Xinistry ark especially of an en?loyee holding your =an:V. l Vie use the word "might" because :<e -point cut later in this Award that in order to be "entitled" to an adjournment the Union at least had to show some reason why t:he aarric.Lars were not disclosed to it and discussed in the grievance meetings prior to arbitration. On July 11, 1379, a~meeting 51a.3 held in the 3oari 3osn of the :limico Correctional C2ntre to investigata the circ~~23~ar,~ces giving rise to these allegations. Thereafter, on Zuly 25, 1979, :$r. De Grandis wrote a letter to the grievor which stated, in pertinent part: It is not my intention to restate evidence in this letter but to address the two allegations in my letter to you of July 5, 1979. (a) With reference to allegation #1 that "you assaulted or. R. Kennedy, Head Shift Officer", I am satisfied by the statement that we weregiven in :qritten form and verbaily at that meeting that, regardless of any other possible cir- cumstances, you did strike Xr. Kennedy. and (5) Xith refer2nce to allegation 32 that "TIour conduct during this incident was not consistenL :<ith the ; eqectations of an employee of this :*!inistry and especially of an employee hclding your rank", I am satisfied that, beginning with your receipt of orders from H.S.O. through the $2 3uilding Officer, you did exhibit, in front of subordinate officers, colleagues and superior officers, inappropriate conduct. It is, therefore, my decision to impose a penalty of suspension from duty without ?ay for a Fericd of ten (10) days. This suspension will take into account the days that you were suspended without ?av ?:er.ding investigation and days will be added to satisfy the penalty impcsed. I The grievor was suspended without ?ay for 10 days. On August 7, 1979, the grievor submitted a :<ritten grievanc2 regarding the imposition of this disci;:ine. .k?arently, this ; i - Z grievance Froceeded Mrough St2ps One and 'i;iio of the grievance procedure in a timely ,manner. Then, on September 23, 1379, the Union sent a letter to the Grievance Settlement 3oard req1:estir.g that an arbitration hearing be scheduled in the present matter. On September 27, 1979, the 3oard gave notice to the z?.pioyer of the application by ‘-,he Union fcr the Shearing. On December 11, 1979, Hr. Michael Pratt, a Grievance-Classifi- cation Gfficer with the Union, wrote to Xr. LT. 3enedict, the Yanager, Compensation and Staff P.elations, i;.uman ?.esources Hanagement, for the Employer. In this letter, ?Ir. Pratt referred to the two grounds which appeared in Mr. De Grandis' lett2r dated 3~1525, 1979 and stated, _ "Xv internretation of t:qis _ document is that suspension was imposed both because Yr. Sukhu allegedly struck Hr. Kennedy and also because cf the alleged misconduct [allegedinpart Lb) of the letter!. if mv interoretaticn of this document is correct then I am sure that you will agree that natural justice requires Yr. Sukhu be told exactly what particular conduct is in question. Once the particulars of the charge ar2 known then I can begin to properly defend XL. Sukhu." The letter ended :;ith a request t:hat Xr. 3enedict forward such information 11as soon as possible". ' On January 2, 1980 :".r. 3enedict replied in writing to Xr . ?ratt as follows: This is in reply to your correspondence of December 11, 1979. The conduct that is referred to iias 2m=l:.: fiiSC.LSS& and reviewed at the S tace 2 meeting Ettrinc w;h?icLl ?z. Sulchu was represented by Xr. %nahue, Ontario ?X:blic Service Zm?loyees tinion reoresentative. 1.1 ;;.-‘p result, the evidenc2 regar&ng‘Yr. Su%.hu's behavisur has already ‘been presented to bot‘n him and tbL2 union and there would seem to be no need to repeat it again here. xr . Sukhu's behaviour -within the context of this evicience was judged that "your conduct during this incident was not consistent with the expectations of an employee of this Xinistry and especially of an employee holding your rank". ?OU may of course, based on the evid.ence, characterize his conduct in another way. The letter identified the Union representative ~hc participated in the Stage 2 meeting and essentially suggested Gnat because the Union co'uld look to the grievor and this Union representative for the facts relating to this ground, it was not necessary for the Employer to repeat it to the Union. On January S, 1980, Xr. Pratt respond2d tha.t because the Zmployer refused to supply such informaticn, "I may find it necessary to seek one or mor2 adjournments or delays vhen such information is forthcoming at the Arbitration Zearing. Frankly, I am loss as to how you will show that sucki in~forma'i OP be . has already been given to us at Stage 2. As you are fully aware, such meetings are held in confidence and Xiii not be opened up for examination by an Arbitration 3oard." This appar2nt impasse be?deen the parties persisted until July 3, 1981 when counsel for the Union wrote to Xr. 3enedict reiterating the position taken by ?lr. ?ratt and stating: The particulars to be provided must set out, at the mininum, a concise statement of the mat2rial facts, actions an2 omissions upon which the em?ioyer iz.:er.ds to rely as const~t~~tingsuch imnproper or irreglular conduct, including the time :+hen and t:he slac2 :<:+.:er2 t$e acts or omissions complained of occ-rr2d and the names of the person or persons to :.;iom the acts or statements wer2 directed. C'nless these ;articnlars are provided within ample tine for the griellor to sre- Tare his case, it will '02 the Union's ?osition at the arbitration hearing on August 2S, 1931, that no .- evlcence should be permitted to be led concerning the allegations set out above. Apparently, the only response t3 this request ;Jas the acticn by counsel for the Employer on the day before the hearing, which consisted of providing counsel for the Union wit:? at least one statement of a.witness that counsel~intended to call regarding the second ground for discipline. In his argument on the first day of hearing, counsel for the Union did not refer to any arbitration cases regarding the necessitytoprovide particulars and the extent to -which grounds for discipline (or for that matter, grcunds forgrieving) must be particularized. Instead, counsel relied u-jon cases interpreting procedural rules of the Ontario Labour Relations Board. In this regard, counsel suggested that we should follow the O.L.R.3. cases despite the lack of a similar procedural rule in this forum because the ruls is simply an expression of a rule of natural justice required to be a;,plied by both the Ontario Labour Relations Roard and the Grievance Settlement Roard under s.8 of the Statutory Powers ?rocedure Act. iie cannot accept this apparent suggesticn that natural justice requires us to regard the matter of,?articalars in t-he same way as the O.L.R.S. Arbitral jurisprudence makss it clear that a labour arbi tration hearing, cnlminating as it 502s a series of steps in a gri2vance procedure. is ,32icA-e. Th-4 2rccess cannot, iz any meaningful sense, be-analogized tc t.ie ?rssess of a judicial or quasi-judicial proceeding. T5e Irniq2eness cf arbitration <<as highlighted in P.e liational Harbours 3oard and 3ublic Service Allimce of Canada (1974), 7 L.A.C. (2d) 1 (:i.S.;, where it was sta.ted, "The grievance procedure [of which arbitration forms a part,] is not a judicial or cuasi-judicial proceeding, The grievor's rights are not finally determined until the matter is disposed of by this arbitration committee and it is at this staqe that the rules of natural justice ccme into play." Id. at le. We do not doubt that in determining its own "practice and procedure" under s.36(13) of The Crown Xapioyees COliPCti'~e Bargaining Act, i972*, t:he Soard must meet the requirements of natural justice. This has been the case in the area of private arbitration. And we prefer to take the approach to the question of particular sr‘nich has been taken by arbitrators in private arbitrations. This approach appears to us to be more suitably adapted to the informal atmosphere surrounding the arbitration process. -- our own review of the relevant arbitral jurisprudence indicates that labour arbitrators generally ta!<e a more ~ie.uL~~e, reasoned view re the matter of particulars than do courts or other bodies which have adopted specific procedural rules. .iS was said by Professor Dalmer inhisrecenttext, Palmer, Ccllecti-~a * 1072 C.S.O. C.67, as amended 197-L, c. ljj; 1979, c. 79. Agreement Arbitration in Canada (137a;, “2.e basic test used is whether or not the information given is sufficient to give the other party adequate opportuni?? to meet the case against him. bloreover, even if there is not sufficient particularity, the board will act only if the other ?ar?i is disadvantaged in some way." Id. at 175. - When we begin to appl:~ the foregoing basic test to the facts before the Soard, several specific iss>ues arise. These are: (1) What particulars are "sufficient to give the other party adequate opportunity to meet the case against him"? (2) Did the disciplinary documents disciose on their face sufficient particulars regarding the second qround for discipline? (3) (a) Should the Board take into account the likelihood that sufficient particulars were disclosed to the qrievor and the Union in grievance meetings; and, (b) Did the moving party have a duty tc s.now that sufficient oarticulars were not disclosed at qrievance meetings, or that if they were so disclosed, they were no longer available to the Union? (1) .What relief, if any, should be granted to the ?arty being prejudiced by a denial of sufficient particulars? Iqe will consider the above issues seriatim in the remainder of this Award. (1) What particulars are "sufficient to qive the other oarty adequate opoortunitv to meet the case against hiri-Ti"l In his letter to the Zmployer dated July 3, l?Sl, cc;21sel for the Cnion asserted that the griever xas =ntitled to ths following particuiars: The particulars to be Frovided must set out, at the minimum, a~ concise statement of the material facts, actions and omissions upon which t:he employer intends to rely as constituting such imprcper or irreqular conduct, includino the time when and the ?iace where the acts or omissions complained of occurred and the names of the person or persons to whom the acts or statements were directed. Unless these particulars .are provided within ample time for tine qrievor to ?re- pare his case, it will be the Union's position at the arbitration hearinq on August 25, 1981, that no ,evidence should be permitted to be led concerning the ,alleqations set out above. Rssentially, counsel required a "concise" statement of "xhen, where. what and who." if counsel was using the word "ccncise" in its ordinary meaning of "brief I', then we agree that counsel :+as ret-uiring the mlnlmum ainount or parti 'culars that miqht suffice to qive the grievor adequate opportunity to meet the case against hi... Arbitrators necessarily have been vague in defining what ccn- stitute sufficient particulars. See, e.g., Re National Ha:bours and Public Service Alliance of Canada (i97~), 7 L.X.C. (2d) 1, at 9-10 (N.S.). Similar vagueness was exrrressed by a learned arbitrator, J.D. O'Shea, Q.C., in Re Gilbarco Canada Limited - and Canadian Union of Golden Triangle Workers (1973) 5 L.A.C. (2d) 205, 213. Xowever, it seems to us that a '-r-es - -& *=-a-* 3 La Lc_ijc.. _ of "when, where, what and who" should in most circ~umstances be sufficient to give a qrievor adequate oppcrtunity to meet the case against him at arbitration. -- I;1 the liqht of the fact tlhat in the present case C3;1? CP 1 ..L__ for the Employer has- supplied to the iinion the statement of at least one witness regarding t:ne disputed ground for discipline, we might add that we do not deea such action to be necessary to satisfy the requirement of ~arti-YYl=--4+r --__..A _j . We do not think that it is essential for the party su?Fiying. particulars to disclose the names of its iritnesses, nor the nature of the testimony to be expected for such witnesses. This seems to -us to go far beyond the minimum necessary to give the party requiring particulars adequate opportunity to prepare its case. (2) Did the disciolinary documents disclose on their face sufficient particulars reoardinc t1he second around for discipline? The short answer to this issue is, no. The secon3 qrom3 fordiscipline, as set forth in the documents, was, "your conduct during this incident :<as not consistent with the expectations of an employee of this ?4iniStiV and especially of an employee holdinq your rank." The Sole amplification O? this ground in the documents occurred in the July 11 letter 0 f Nr . DeGrandis vhen he referred to that ground, saying, "I am satisfied that, beginning rgith your recei?t of orders from .H.S.O. through the +2 Suiiding Officer, you did exhibit, in front of subordinate officers, colleaques and su>erlor --. orz1cers, _ _ _ inaoorooriate conduct." These allegations are, on their face, insufficient to advise the grievor of the "who, .;i;hat, when and where" of this ground for discipline. Nhile the allegations contain vague references to when the alleged misconduct began and who observed the alleged misccnduct, there is no indication of what actions by the grieror constituted misconduct, when the misconduct took slate, nor when it ended. If these allegations were the only basis upon which the Union could proceed in preparing its case for the arbitration of the grievance, it would be beyond dispute that the Union lacked an adequate opportunity toneetthe case against the grievor. (3) (a) Should the 3oard take into account t,he li:c2lihood that sufficient oarticulars were disclcsed to the grievor and the Union in grievance meetincs? The foregoing conclusion brings us to consideration 09 the consistent response of the Znployer to the Union's rapeate;, requests for particulars, *, that "the conduct that is referred to iqas amply discussed and reviewed at the Stage 2 meeting during which Iyr. Sukhu [the griever] was represect& by Mr. Donahue, Ontario lublic Service Smployees Union representative. In the result, the evidence regar2ir.c Xr. Sukhu’s behaviour has already been przsented i-o,boC 'T.~EI and the Union and there would seem to be no need to reTeat it again here." The only respor.se 3f the Er.ion 75 3is essenZia11~~ was that the Smpioyer would have a difficult time proving this to be so because grie~rs.nce meetizcs "will zot ‘2e c;er,ec 22 for examination by an Arbitration Soar?". Sut arbitration beards do take into account the fact that the matter coming to arbitration has pros-iousiy 2022 through a multi-step grievance procedure involving the grievor and the parties to the arbitration. It would se2.m bhat, in general, the meetings at these various st2ps provide "very adequate opportunity for discussicn and the provision of particulars directly between the parties." Re Corporation of the Town of Tlalley Zast and The Canadian Union of Public Employees, Local 6 (1393), 27 L.A.C. (2d)-154, 157 (Kennedy). Especially iJhere as here, the Tinion never grieved a refusal by the Employer to supply particulars during a grievance meeting, the inference is strong that the nec2ssay.' oarticulars were, in all li!<.elihcod 3rovi<.ed a-d disc,Jssed duri:.$ the. grievance meetings involving the Union and the %ployer.* As a result, it seems to >us that in ruling upon a request for particulars in these circumstances a board of arbitration is entitled to take into account the likelihood that sufficient particulars were disclosed to the griever and the Union in the grievance meetings leading to arbitration. kiere, t:12 33ployer claimed that this was so. The Union, which was the pazty requiring particulars, never asserted, other-:Iise. Its cniy response was that the matter xas incapabl2 of prcof heca-se a board of arbitration wiil not exsmine into grievance meeti>qs. This response was inappropriate and, as will b2 discussed belaw, the Union's adherence to this position proves fatil tc its ncticn * See Fte 3lack-Clawson-ienne&r Ltd. and i'r.ii_ed Steei:<ork2rs; Lscsl :A:. (19731, 2 L.d.C. (3d) 301 (2.D. 3rcwn), xh2ze tke L‘zicn z=iex--52.i r?r refusal of the Zmployer to su??ly ?artitiulars a: a St92 3 ;riavxc= meeting. before the 3oard. (3) (b) Did the moving oarty have a dut-r to shcir that su?ficie?S aarticulars were not disclosed at toe grievance meetzncs, or that if tiev were so disclosed, . 522v wer2 EO lcncer available to the Union? In deciding this issue, we have kept in mind several ?rinciTles: ?irs t, the moving sarty has the onus 0,n its own motion for particulars. Secondly, to succeed on a motion for particulars the moving party must showy that he is pre- judiced by the refusal to supply particulars. Thirdly, a board of arbitration will not examine into the substance of matters discussed during grievance meetings. $.nd finally, the rules of natural jsutice which govern the scope of particulars to be supplied forarbitration ?ur?oses do not necessarily apply in grievance meetings. _ Se2 that part of Se Xaticnal Harbours Board which was quoted, suora, in this award. - Applying the first three.of thes2 lorinci?las to th2 facts of this case, we conclude that in order to be entitled to an order to supply particulars, the Union here had a duQ t3 lo more than allege t:hat it needed the ?artic,Llars and the disciplinary documents did not disclose them. The Union bad to show that it was not in ?ossession of tile eartic2iars 5~ virtue of disclosures mad2 in grievance meetings. The Union had the onus in 312 matter. To discharge ?.is the Union was onus, required to shcw, inter alia, =.:a= it xas -- pr2judiced by the refusal of t_;?e z~,cicq'=r to s-2~~1~ r:-.e ~a==ic~zlazs. _- - to comprise a showing that the particulars xer2 not reasonably available f-0 th2 iJp.ion from its Own r2CC:tS of grievance meetings, from its own sersjnnel wko attended the greivance meetings, or from the grievor. The Union never mad2 any showing in this regard. It does not 322.11 to be an adeouat2 answer to this faii~:r= for the Union to say that the matt2r is incaFable of proof 'because evidence that the necessary particulars v2r2 refcsed during grievance meetings would be rejected by an arbitration. board. Asindicated above, an arbitration board is.entitled to "judicially" note that it Ls canmon kno~~ied~e that discussion and exchanges of particulars do take place during these meetings. ,Furt:her , while it is true that arbitration boards honour the confidentiality of substantive matters 'which are discsse~ during me2tings at tile stages of the grievance pro&dure, it is not uncommon to receive evidence at least with respect to procedural matters. As to particulars, evidence has been received and ruled upon by arbitration tribunals with respect to requests and responses - reoarding Farticulars at grievanca meetings bet-.?een union and management. See for exazpie, Xe alack-Clawson-Xennedv Limited and United St22luorZers. Local 2469 (1973), 2 L.A.C. (2d) 301 (X.0. 3rown), where the Board considered and ruied upon a cornsany respcnse to a union request for particulars at a St23 3 Grievance ineetiog. We bear in mind that them might be other reascns why the necessary particulars were una'iailabie to 32 Union. For example, tine Union representative who attend- ed the Stag2 2 meeting might have been unavailable to brief counsel, and the grievor might not recall in a reliable manner what particulars related to the ground in question. Or perhaps the particuIars supplied during the grievance meetings were too inccmplete to satisfy the requirements cf natural justice. . But whatever tne circumstances, it surely was incumbent upon the Union to demonstrate the reason xhy it found it necessary to seek 9aAi-, -+;culars from t:he Smployer at the arbitration stage. Secause the case for the tinion rest2d u?on essenti+ii:f bald allegations that it needed the particulars in cuestion and the disciplinary documents did not supplythem,sre conclude that the Union failed to sustain its onus or burden of 3roof on the issue of prejudice and tnat this failure is fatal to its motion. There was no shcwing that the earticuiars in question either were not disclosed during the State 2 meeting or for some other reason became unavailable to the Union at the arbitration stage. As a result, we deny the moticn of the Union. The Union is not entitled to an order from this soard striking the second around for discipline or recpiriy the Employes to SUppiy particulars r2lating thereto. -- (4) Xhat relief, if any, shculd be granted to t::.e sart.i being prej?idiced bv a denial of sufficient 3arficalars7 Even though we concluded against the L'nion on tine t:nird issue, above, we believe that we snould direct scme ccrAments toward the nature of the .relief to be granted in a case of denial of sufficient particulars because in this case, the Union took the unusual position that it was entitled to an order striking the second ground for disk:-i.?li.ne. The ~~otior. to strike, we are given to understand,wasbased upon the doctrine of estoppel, &, that the repeated ref.xal 5y tne Employer to particularize its second ground estog?ed the Employer from relying on that ground. Generally, the party which "has been prejudiced by lack of sufficient particularity . . . [will be granted] art adjourn- ment until such particuiars are supplied." ?aimer,, su3ra, at 175. See also Vational iiabours Board, suzra, at 1C. It seems that the only circ,mstances under which an estcp?el has been‘raised against the party supplying inadequate particulars has been where it was shownthat the failure to supply adequate particulars was done with an intent to mislead and as a result the other party was prejudiced. As was said in Xe Gil5arco, sunra: (( [Ilf an employer were to actively mislead a union as to the real nat-re of the subject-. matter of the grievance and, as a result, t::.,2 union's positicn was prejudiced, then the doctrine of est.oppel might prever.t t5.e er.?lcyer from intrcducins a fresh justificaticn at the time of the arhit-ation L3earir.c. . . . [:I?= :?.is should r.ot lhappenl in cases wh;re the emplover, although being somew'nat vag';e in settin,; cu- reasons, has not intended to mislead t?e o:her :)ar ty . " Id. at 122. In other words, where there is vagueness on the Tart of one party but no intent to mislead, an esto?pel is not jaxtified. Rather, the proper relief comprises an adjGurx!ent until the necessary particulars are supplied. It perhaps goes without saying that we find no reason here to stri!<e the second ground relied u>on by the Zm?loyer. Here, there was no evidence that the Employer worded the ground with-an intent to mislead the Union. :Joreover, even if repeated bad faith refusals to particularize a ground for discipline were sufficient to raise an estoTpe1, no estoppel would be raised here. Fe have found that tne refusals by the Employer were in good faith and justified because the Union failed to make out a case of prejudice to its position should t;he Enployer refuse to supply t:he particulars. For all the Employer knew, the particulars were available to the Union from its own personnel and the grievor. Conclusion: The motion of the Union is denied. The Union is not entitled to an order striking the secclnd ground of disci?iine. Further , the Union is not entitled to an order requiring ::a requested particulars to be supplied by the Employer. iTe do recommend, however, that in a spirit of ccoseration the Employer supply - to tke Union a 'brief statement 1, -2 13 "when, where, what and who" relating to the second ground of discipline. We make this recommendation because, for whatever reasons, it is apparent that the Union lacks these particulars. Moreover, the hearing already stands adjourned. We do not wish to endure a second adjournment should ?roper motion for particulars be made by counsel for the Union at the commencement of the next day of hearing. The hearinq of the substance of this matter would be expedited if within a reasonable time before the next day of hearing in this case such a statement of particulars were supplied. DATED in London, Ontario this 4th day of December, 1981. R. J. Roberts Vice Chairman "I dissent in part" (See attached.) S. D. Kaufman Member ,:,%-7L-+ I. S. KacSreqor xember I have had the opportunity of reading the interim a:jard of the Vice-Chairman. I concur with the Vice-Chairman in his remarks and conclusion regardinq the Grievor's motion to strike the ground for discipline, (Ground (5) in the letter of >!r. DeGrandis to the Grievor, of Zuly 25, 19791, for which particulars had been refused. Counsel for the Griever motioned, in the alternative, for. an Order reguiring the Employer to provide particulars, specific- ally, a "concise statement of the material facts, actions, and omissions upon which the Zmployer intends to rel:y as constit.Jti+c such imoroper or irregular conduct, including the time x:nen and the.place where the acts or omissions complained of occurred, and tne names of the Ferson or Fersons to whom the acts or state- ments were directed" -- a "concise" statement of "when, xhere, what and xho." I dissent with the Vice-Chairman's discussion of t:his ?a='_ of the Griever's motion, and the refusal cf t4e i?ice-C?.s.irTan of an Order for particulars, fcr t:be rollcw~.a zeascns : 1. An arbitrator has an inherent oower to order ~articultrs, and s‘nould exercise his discretior. to 20 so :i.:.eze z:?e ?artl, feelin? ?r-j-diced by *;~e lac;< of ~a-;'-.77 2-c -b-i-_-_- ma!<es his/her rec~uest at t:le esyli*st ;:os*il:le saint in the proceedings prior tc t::e ?.earin~,x'hic:h -2- appears to have been done here. T :? e coimer,rs of Brown and Beatty ins Canadian Latour Arbitration, 3:1410, at p.100, apply : II . . . whenever a partv feels prejudiced by a lack of knowledge 02 the other party's zcs- ition, prudence as well as fairness dictate that a request be made at the ear-&est possible,pdint in the oroceedings'irior to the hearlnq. .Voreover , where 3uc:h a rectlest has been made, but not comolied with, the arbitrator mav reouire that.oarticulars be given. That does not mean that a party must set out the evidence upon :dhich it will be relying; rather the statement need only consist of the material facts relating to each issue in dispute."(Emphasis added) 2. The initial request for particulars was made to the Zmployer by the Union approximately 20 - 21 mcnths prior to the date of 'nearing of this motion. The Employer;s position in response, essentially was that the Grievor had been given the particulars at the Grievance level. The oassace cf time did not move the Employer from this position, despite the Griever's repeated recuests. In fairness to both oarties t??e arbitration board has an obligation where, as here, tine disciplinary documents do not disclose sufficLent particulars and the Grievor requests sarticulsrs 21 months before t5.e hearing and k3.e Zm~ioyer alleges the Grievor has them, a fact T.ot pArcessar-ly r;i-~-*A -'-a CL-: -I.- _.& dIy'-J 1 ers knowledge to clear the impasse and z=-f?'i= --i-;--^-e the arbitration process by orderin ;artic-lars. -3- 3. On the basis of the arguments presented at the hearing I cannot concur with the Vice-Chai,-;nan that t:he infer- ence is strong that the necessary particulars xere in all lilcelihood provided and discussed during grievance meetings. 4. While the Statutory Powers Procedure Jet toes not apply to the within hearinc, it l?as been said in previous decisions or' this Soard that that 9ct shculd be followed in spirit even if it does not apply (Palph, 212/75) and that if t?ie parties had made t!ne effort to seriously communicate with one another before the hearing t:?ere could have been a precise delineation and more narrow circus!scription of the issues, thereby expediting the proceedings (Iiarris, 7/75) and the Board for the same reason admonished the parties as to the need rLor a full and frank discussion betideen themselves before the hearing in Tam, l/76,. . Section 0 of the Statutory Powers Procedure Act reads: I' A. Where the qood character,. -crocrietv of conduct or competence of a partv is at issue in any proceedinas , the -arty is entitled x be furnished crier to the hearin? xi=.'. reasonable iniormation of anv allecatisns xi::? respect thereto." (S'nphasis added! The application of t:-.e s3irit if net t:-.e letter of this -4- section should result in an Order for yrticulara being made in this situation. Failure tc ar;>ly fne spirit of the Statutory ?owers Drccedure Act on this motion would result in a denial of natural justice. 5. The test that the Griever mus t meet as suggested 'by the Vice-Chairman in his discussion under issue 3(S) of his Interim Award, would require the.Grievor to prove a negative, i.e. that he was not in possession of the particulars on the,date of the hearing. 3.e application of this test would result in any -,arty seeking a similar Order facina an onerous burden, indeed in the face of mere argument or allegations from the opposition that the party was apprised of the particulars. 6. On a procedural notion as herein, the matter of whether the party moving discharoes the requisite onus is secondary to. the discretion in the arnit- rator to make the ruling which will best facilitate resolution of the main issue for tie ?artres, and which Sri11 avoid further adjournments. ?.n OrZer requiring tile Employer to pro-vide garticulars would meet that end in this case. The issues set out as 3(5! in t%.e Vice-Chairman's Interim Award was not a point on whit:? argument was delivered or invited at the hearing, and, fcr t5.a -j- reason should not be a basis of the In'kerim .I:+ard. 7. It was apparent from the argument of Counsel for the Grievor that if he were not supplied :gith the particulars, he and his client would be prejudiced in preparing their case. He advised the 3oard that on the date of the hearing, he had no reasonable understanding of the allegations constituting in- appropriate conduct. In my opinion, there was no evidence upon whicil to doubt his submissions. To succeed on this application, the Griever was. not required to establish that actual orejudice would result from a failure to supply particulars, but only that there was a reasonable likelihcod that prejudice would result. I am satisfied t:hat :?e :has established a reasonable lilcelihood of actual prejudice. 8. It was apparent from argument of Counsel for the Employer and the Grievor that no substantial orejudke would result to the Employer by the -Jrovision of the particulars as requested in the circxstances. 9. The orovision of one witness' statement cn the dab- before or on the morninc 0' Lb Liie hearing &es 22% necessaril./ orovide a concise statement cf tne ra:erLsl -6- facts upon which the Employer intends to rely, unless that witness is the only witness. Co~.SeF.?a~t;.,~ 'I--- the provision of this statement does not in all cases, nor did it ,in this case, go beyond the minimum hecessarli to give the party requiring oarticulazs to orecare its case. 10. An Order for particulars in this case xi11 avoid the possibility of the necessity for a further adjourn- inent in the event that one of the parties is "surorised" by the subsequent evidence of the other. 11. Vhile it is possible that Farticulars may have been furnished during the grievance process, the arbitratcr cannot assume that the disclosures and atiissions given during this process are agreed upon facts. Consequently where a party requests particulars, it is incorrect to assuIp.e that the disclosures zade _ CuTiilcl the qrievance process consti?Jte adequate particulars. Sven a "likelihood" of disclosure dces not entail the likelihood that what xas disclosed jrere indeed the material facts, actions az.d cmissicx upor, which the Employer intends to rely at artitraticn Csnseaue.ntly, I xould have allcwed the mcticn of the -7- Grievor for an Orc?er recuirim t?e recuested _ ---. particulars to be su??liecI by the Flnployer. DATE!3 AT TORONTO this 4th day of aecember 1981.