GSB#2002-2390
UNION#2002-0211-0044
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Barillari)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community, Family & Children’s Services)
Employer
BEFORE
Nimal V. Dissanayake
Vice-Chair
FOR THE UNION
Nelson Roland
Barrister and Solicitor
FOR THE EMPLOYER
Ferina Murji
Legal Counsel
Management Board Secretariat
TELECONFERENCE
October 9, 2003
DECISION
The Board was seized of a grievance dated February 7, 2002 filed by the grievor Ms. Rosie Barillari. By agreement of the parties, however, a second grievance filed by the grievor dated December 13, 2002, was added to the proceeding, although according to the employer, that grievance had not been properly dealt with through the grievance procedure. In consenting that the Board may determine the latter grievance, employer counsel wrote on May 23, 2003 to union counsel to the effect, inter alia,
Although the second, December 13, 2002 grievance is not properly before the Grievance Settlement Board, the Ministry is willing to deal with the issues complained about in this grievance, in order to deal expeditiously with the Grievor’s complaints and to provide some closure to those matters.
While the Ministry has, in good faith, agreed to include the litigation of the December grievance with the other grievance that is properly before the Board, it will not accede to the introduction of evidence that is extraneous to the complaints.
This decision relates to the employer’s demand for particulars with respect to the December 13, 2002 grievance.
That grievance reads:
I have been denied my rights under Article 2 + 3 of the Collective Agreement + any other applicable article by my manager’s refusal to remove any and all letters of counsel, caution and any other material that is negative +/or derogatory in nature on any file held by the Ministry of Community, Family and Children’s Services. This has been a constant barrage that has affected my health and attendance.
The settlement desired section states:
That the above material be removed immediately and that there be no further reprisals, reprimands, or harassment. That I be allowed to perform my duties without the above impediments. That I no longer be directed to supervise my peers or police their actions as part of my performance management.
In the same letter dated May 23, 2003 to union counsel, employer counsel wrote:
Given that the Ministry has agreed to deal with the grievance filed in December 2002, it requires particulars for the grievance. Please be advised that in addition to the following specific requests, the Ministry also seeks any information and/or documentation that may be arguably relevant to the grievance before the Board. Moreover, the Ministry reserves its right to make additional requests for particulars and disclosure should the need arise at a later date.
In order for the Ministry to prepare its case, it requires information in the following:
How, in what manner, has the Grievor’s rights been denied under Articles 2 and 3 of the Collective Agreement?
When were the Grievor’s rights allegedly denied under Articles 2 and 3?
Which letters in particular is the Grievor seeking to have removed from her file? What are the dates of the letters?
On what basis does the Grievor believe these letters should be removed?
How, in what manner, has this matter allegedly caused a “constant barrage that has affected (the Grievor’s) health and attendance”?
What, specifically, are the “reprisals, reprimands or harassment” that the Grievor alleges she has been subjected to?
When, specifically, did the Grievor allegedly suffer “reprisals, reprimands or harassment”?
How have the allegations contained in this grievance impeded the Grievor from performing her duties?
Please be advised that this is a preliminary request for particulars, sought with the intention of understanding the nature and scope of the December 2002 grievance. Accordingly, the Ministry reserves its right to make further requests for particulars/disclosure and to raise any preliminary objections that may be warranted, once it has been advised of the union’s position and the facts upon which it is relying in furtherance of the grievance.
The documentary evidence before the Board indicates that, the employer subsequently repeated its request for particulars without receiving any.
The employer sought the instant hearing to request that the union be ordered to provide the particulars in advance of the hearing scheduled for November 6 and 7 of 2003.
During the hearing held by conference telephone, union counsel did not dispute that the employer was entitled to the requested particulars in advance of the hearing. Nor did he deny that no particulars had been provided. Other than explain the difficulties he has had in obtaining the necessary information from the grievor to formulate the particulars, no reasonable excuse was offered for the failure to provide particulars.
In the grievance dated December 13, 2002, the grievor has made several allegations against the employer. It is a fundamental rule of equity and fairness that a party is entitled to know what it is accused of in order to have an opportunity of defending itself. It is trite to say that one cannot defend oneself, if it is not made aware of what exactly it is accused. In order to prepare its defence, - and I might add even to consider admitting the allegations – it is imperative that particulars of the allegations be provided well in advance of any litigation. I have not been provided any valid reason why an order for particulars should not issue.
In all of the circumstances, including union counsel’s plea for time, the grievor and the union are hereby ordered to provide to the employer written particulars related to the grievance, on or before October 29, 2003. Failure to comply may result in the union being precluded from adducing evidence on matters not particularized or even the denial of the grievance itself.
Dated at Toronto, Ontario this 14th day of October, 2003.