GSB #2693/96, 2739/96, 1203/97, 1204/97
OPSEU #97D322, 97D362, 97E143, 97E144
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Tone)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General & Correctional Services) Employer
BEFORE Nimal Dissanayake Vice Chair
FOR THE Nelson J. Roland
GRIEVOR Barrister & Solicitor
FOR THE Melissa Nixon,Counsel
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING September 20, 2000.
DECISION
This decision deals with certain further issues between the parties relating to disclosure and particulars.
(1) ISSUES RAISED BY THE EMPLOYER
(a) Disclosure by union of financial information:
In its decision dated July 4, 2000, the Board ordered, inter alia, as follows:
The union is ordered to provide to employer counsel no later than July 24, 2000, all income tax filings made by the grievor, together with any financial statements and T4s; any documentation pertaining to employment insurance benefits received; all of the above covering the period June 4, 1997 to the present. The employer shall maintain confidentiality and shall not use the information disclosed for any purpose other than this proceeding.
The employer alleged that the union had failed to fully comply with the Boards order. Specifically, it was alleged that the union had,
(i) only disclosed the income summaries page of the grievors income tax returns and had failed to disclose the full returns.
(ii) failed to produce any payroll records relating to his earnings during the period in question.
(iii) failed to disclose any records relating to earnings from sources other than the employer.
Following informal discussions, Mr. Roland advised the Board that with regard to (ii) and (iii) above, he had been instructed by the grievor that no other documents exist beyond what has already
been disclosed. With regard to (i) above, Mr. Roland undertook to disclose to employer counsel the complete income tax returns, including attachments filed, at the earliest possible time.
(b) Particulars relating to allegation of bad faith:
Following informal discussions, Mr. Roland advised the Board and the employer that for most part its particulars relating to bad faith are those contained in exhibit #5 - The Final WDHP Investigation Report, June 1998. Union counsel undertook that any elaboration of the said particulars and further particulars, if any, not contained in exhibit #5, will be provided to employer counsel in writing no later than October 31, 2000. If no elaboration or further particulars are forthcoming, union counsel undertook to so advise employer counsel in writing no later than October 31, 2000. It was further agreed that if particulars of additional allegations are received, the employer would be accorded a broad right of calling reply evidence to deal with the same.
(2) ISSUES RAISED BY THE UNION
(a) Disclosure:
By letter dated June 30, 2000 union counsel requested that employer counsel provide disclosure of the following:
(1) any and all information relating to Mimico Correctional Complexs investigation of the yard incident, the log book incident and the informal WDHP investigation of Mr. Tone;
(2) investigation report(s) by Evelyn Pollack regarding Mr. Tones formal WDHP complaint, especially witness statements of each respondent;
(3) findings of Human Resources and Development Canada hearings regarding Mr. Tones dismissal;
(4) Mimico C.C. Standing Orders in place at the time of the aforementioned investigations;
(5) Adult Institutions Policy and Procedures manual in place at the time of the aforementioned investigations;
(6) any and all memos, documents, pertaining to yard procedure for Mimico Detention Centre inmates;
(7) Employee reference checks used by Lee Anne Enright for Mimico C.C. Recreation Officer competition in November 1994;
(8) Ministry of Solicitor General and Correctional services training manuals;
(9) any and all incidents of discipline of other employees pertaining to incidents in detention centre yard; and
(10) administrative log book identified in Evelyn Pollacks formal WDHP investigation report which notes the receipt of lee Ann Enrights August 1996 Occurrence Report regarding yard incidents.
It was alleged that the employer had failed to fully comply with the request.
The employers position with regard to items 1 and 2 was that, as far as she knew, full disclosure had been made. She undertook to look for and disclose any further material, if the union brings to her attention anything else, which it claims to be missing from what has been disclosed.
There was no issue relating to item 3. Employer counsel agreed to make disclosure of the material referred to in items 4, 5, 6, 8 and the material referred to in item 10, if any is found to exist.
The employer, however, resisted disclosure of the material referred to in items 7 and 9. I received submissions on whether the Board should order disclosure on those two items.
The request in item 7 is for disclosure of reference checks considered during a job competition in which Ms. Enright, (the employee whose complaint led to an investigation of the grievor and his ultimate dismissal) had participated in 1994. Mr. Roland submitted that Ms. Enright has had a history of behaviour which render her credibility questionable. In his view the reference checks are relevant because they may contain statements useful in impeaching Ms. Enrights credibility through cross-examination.
With regard to item 9 union counsel submitted that how the employer meted out discipline to other employees in relation to incidents in the yard, is very relevant to the issue of appropriateness penalty and whether the grievor was singled out for harsher treatment.
Having considered the submissions, I find that the union is not entitled to disclosure under item 7. The reference checks in question pertain to a job competition which has been grieved separately by the grievor. That grievance, the Board was advised, was before another vice-chair of the Board. The union is not pointing to anything that it is aware to be in the reference checks, which it claims to be relevant. The desire is to see if anything useful is contained therein. That, in the Boards view, is a clear case of a fishing expedition. Besides, the reference checks would constitute the subjective opinion of individuals, which by themselves are hearsay in nature. The Board is very unlikely to attach much weight to such opinions in carrying out its mandate to assess credibility. In all of the circumstances, the unions request is denied.
With regard to item 9 also, the request is a broad and general one. The union is seeking disclosure relating to any and all discipline arising out of incidents in the yard which may have occurred at any time and under any circumstances. If the union is able to point to any particular incidents which are similar to the one in this case, it may be entitled to disclosure relating to those. That is not being done here. The employer is being requested to review the files of each employee to see if any discipline relating to any kind of yard incident exists. This also, is in the boards view a fishing expedition. The unions request is denied, subject to its ability to make a further request relating to any specific incident(s) of discipline, which it claims to be relevant due to similarity of circumstances.
(b) Conversion of grievors position to a full-time permanent position:
Following discussions employer counsel undertook to provide to the union counsel in writing by September 24, 2000, the employers position with regard to the grievors eligibility to convert to a full-time permanent position, and the employers view as to the number of hours worked by the grievor which formed the basis for its position in that regard.
Upon consent, the Board hereby orders that each party comply with the undertakings made as set out in this decision.
Dated at Hamilton, this 22nd day of September, 2000.