GSB# 1999-1224, 1999-1565, 1999-1566, 1999-1567, 1999-2019

UNION# 99E122, 99D203, 99D204, 99D205, 00A154, 00A156, 00A155, 00A159, 00A158, 00A157

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Pickett)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Len Hatzis Counsel Management Board Secretariat

HEARING

February 27, 2004

Decision

The Proceedings

These grievances were triggered by an incident alleged to have occurred on May 23, 1999. On March 18, 2003, the union was ordered to provide further particulars regarding the following allegations set out in paragraph 17 of its letter dated November 8, 2001:

17. The actions of the management described in paragraphs 9 to 15 were in part motivated by a discriminatory attitude towards Mr. Pickett. Mr. Pickett suffers from a form of cerebral palsy. It causes him to noticeably limp. In the early stages of his employment at Metro East he experienced significant hazing from staff, including supervisors. He was led to believe that many supervisors did not think he was capable of performing his duties in the institution. This discriminatory attitude was a factor in the disciple that was set aside by the panel chaired by William Kaplan. In fact, Mr. Pickett proved to be an excellent correction officer. After his reinstatement, Mr. Pickett continued to experience negative attitudes from representatives of the employer. Others who were members of the classes set out in Article 3.1 of the Collective Agreement and the Ontario Human Rights Code, also experienced discrimination at the institution, discrimination that management did not deal with effectively. There was also evident bias against those who exercised their rights to grieve or otherwise challenge management.

The union responded on March 21, 2003 with 16 paragraphs of particulars relating to paragraph 17 above. In those particulars the union adverted to three documents upon which it would rely. The employer subsequently objected to those documents being admitted as evidence. That issue was dealt with in an interim decision dated February 5, 2004.

In the interval since it delivered its letter of March 21, 2003, the union has withdrawn paragraphs 1, 2 and 5. The employer now seeks to have paragraphs 3, 4, 6, 7, 8 and 9 struck out as untimely allegations.

Submissions of the Parties

The employer submitted that allegations that are greater than three years old are inherently prejudicial and the union should not be able to rely upon such allegations because their probative value is outweighed by their prejudicial effect. Further, by a decision of the GSB dated January 15, 1996, Vice-Chair Kaplan reinstated this grievor. The employer here submitted that the allegations of discrimination were, or could have been, put before the Board in those proceedings. The Employer relied upon: OPSEU (Ross) and the Crown in Right of Ontario (Ministry of the Solicitor General), GSB #2690/96 et al and OPSEU (Patterson) and the Crown in Right of Ontario (Ministry of Public Safety and Security), GSB# 2001-0925 et al.

As to the Kaplan decision, the union submitted that no decision was made, or was required to be made, regarding the allegations of discrimination made here. The union summarized the instant allegations as being that various actions taken against the grievor after May 23, 1999 included an element of discrimination against the grievor due to his physical handicap and his activities on behalf of the union. It seeks to rely on the earlier events, which might have been put before Vice-Chair Kaplan, to establish actual discrimination, in order to infer the element of discrimination in the post May 23, 1999 events. Finally the grievor’s losses arise from his absence due to stress-induced illness following the May 23, 1999 incident. The union said that his entire work experience was relevant to the assessment of that claim.

In reply the employer submitted that the Board’s jurisprudence in Ross, supra, and Patterson, supra, establishes that three years is the rough cut-off point for making such allegations, and it asks that the same standard be applied here.

Reasons for Decision

In my decision of February 5, 2004, I specifically dealt with the use to be made of the Kaplan decision (OPSEU (Pickett) and The Crown in Right of Ontario (Ministry of Correctional Services) GSB# 2251/93).

That decision dealt with Mr. Pickett’s previous termination of employment, dated November 26, 1993. It reinstated him effective January 15, 1996. Mr. Pickett returned to work and worked just more than three years until the alleged incident of May 23, 1999.

I have reviewed the Kaplan decision again in the light of the issues now put before me. It is clear that the evidence of discrimination now sought to be put before me was put before the Kaplan Board at page 14:

. . . The grievor also told the Board that he experienced some hostility when he first joined the correctional service. One officer told him that “ten years ago we would not have hired someone like you”. This attitude made the grievor even more determined to take on all the functions of the job, and to show that he could do it by responding to all codes. . . .

Generally speaking, the issue of Mr. Picket’s treatment because of his disability was put before the Board, a final decision was rendered by the Board on the issues before it and the parties there and here are identical. However, the union closely parses the reasons of the Kaplan Board and urges that since the Board neither upheld nor dismissed the discrimination allegations, they are fresh issues which may be dealt with now. In my view the Kaplan Board came to the conclusions it did without the need to make findings of fact on the discrimination issues. Accordingly, there is no prior ruling upon which the employer may estopp the union from calling evidence.

However, the allegations sought now to be brought forward are, at their youngest, matters that arose before Mr. Pickett was discharged in November 1993. I share the concerns raised by this Board in Ross and Patterson and both agree with and am bound by them.

It should be noted that neither case draws a bright line of three years back beyond which evidence will not be allowed. Rather the task is to find a balance between probity and prejudice. In these circumstances, the hiatus in Mr. Pickett’s employment from November 1993 to January 1996 provides a significant breaking point in his experiences as an employee. I find that his return to work on January 15, 1996 is the point at which evidence of discrimination achieves the required level of probity to permit consideration of its admissibility. Evidence of previous events is inadmissible.

However, this decision must be read with the decision of February 5, 2004. I note again that Mr. Pickett has since passed away. Mr. Pickett gave evidence, which was tested, both before Vice-Chair Kaplan and the Ontario Human Rights Commission Board of Inquiry. Relevant findings made there are admissible, with their weight to be determined at the close of the case.

Dated at Toronto this 30^th day of March, 2004.