GSB#1799/99
UNION#00B046, 00B047, 00B048, 00B049, 00B050, 00B051, 00B052, 00B053, 00B054, 00B055, 00B056, 00B057
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Group Grievance, Klonowski et al.)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFORE Barry B. Fisher Vice-Chair
FOR THE UNION Don Martin Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER Fateh Salim Counsel Management Board Secretariat
HEARING May 28, 2002.
DECISION
On December 19, 2001, I issued an Interim Decision with respect to the issue of particulars required to be given by the Union to the Ministry in respect to allegations of discriminatory conduct in relation to the enforcement of a travel policy.
The December 19th decision is attached to this award [Exhibit A].
Although the particulars were supposed to be filed by April 30, 2002, the Union was granted an extension and a letter setting out the Unions’ response was filed on May 31, 2002. The letter from Mr. Martin of OPSEU setting forth the Union’s response is attached to this award [Exhibit B].
The Ministry, by way of a letter to the GSB dated July 19, 2002 asked for an order dismissing the grievance for failing to abide by the December 19th order and failing to make out a prima facie case.
I gave each side a full opportunity to present their written argument, which each of them did.
I am satisfied that the Union response of May 31, 2002 does not comply with my order of December 19, 2001, in particular for the following reason:
- Paragraph 2 of the order required the Union to provide the dates of each alleged occurrence. No such dates were given. The purpose of my order was so that the Ministry would be able to respond to specific allegations and from which an examination of the time and travel records would probably easily reveal whether or not the policy was being applied in a discriminatory fashion. By only giving names and not dates, the Ministry would have to do extensive research in order to respond to these vague particulars. That is exactly the work the Union should have done to be in compliance with my December 19th order.
In fact the Union acknowledged in their argument that they had not complied with paragraph 2 of my December 19th order. Mr. Martin, in his letter to me of August 7, 2002 stated, “ There is nothing to be gained by plugging in a long list of dates for each allegation”. Well, that is what I ordered, so the time to protest should have been when we were discussing the making of the order, not when the party responsible for doing the necessary groundwork decides that they should not have to do the work at this time.
- Paragraph 3 of my December 19th order requires the Union to provide “ full particulars “ of each allegation. This would include detailed information showing all the necessary elements of the allegation.
In essence I expected that the Union would respond in a fashion as follows:
Allegation One; John Employee, who worked out of the Toronto Office and lived at 123 Anywhere Street, Brampton at all material times did on, January 4, 2001, proceed from his house to his first call at 123 Edward St Toronto, a distance of 22 km, whereas he should have first gone to the Toronto Office and then to the Edwards Street location, which was only a distance of 8 km from the Toronto office. He was permitted by manager to do so and in fact was paid by the Ministry for the 22 km.
Providing particulars in this fashion would have allowed the Ministry to respond to each incident in a clear and concise fashion. It also would have made the hearing of this case proceed in an efficient manner because everybody would know before the hearing exactly what the case was about.
With respect to remedy, I can see no practical remedy except to dismiss the grievance. The Union has had ample time to do the necessary legwork; giving it more time would make simply a joke out of the December 19th order. Moreover claims of discrimination should not be thrown around with the hope that the evidence will come into place as the case proceeds, rather the party making such an allegation should have its basic factual research in place at least by the time the case is scheduled for a hearing.
I note that VC Leighton in a decision entitled Giannou 570/96 dismissed a grievance involving an allegation of bad faith because no particulars were provided even in the opening statements of the parties.
The grievance is therefore dismissed.
Dated at Toronto this 27th day of September 2002