GSB# 2002-2536, 2002-2537
UNION# 2002-0582-0073, 2002-0582-0070
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Moreau)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Barry Stephens
Vice-Chair
FOR THE UNION
Nelson Roland Barrister and Solicitor
FOR THE EMPLOYER
Len Hatzis Counsel Management Board Secretariat
HEARING
June 6, 2005,
Decision
The employer brings a motion to dismiss the grievances before the board on the grounds that the grievor has failed to comply with the order from this board dated January 11, 2005, which required the exchange of particulars prior to the resumption of hearings into the two grievances. The employer argues that the order had been breached, in that the grievor failed to supply particulars within the stipulated time period, and, in addition, as of the June 6, 2005 hearing, had not provided full particulars of serious allegations. In the alternative, the employer seeks an order that the grievor must provide full particulars within one week, and be precluded at the hearing from adducing evidence related to facts that are not particularized.
This case was originally set down for hearing on January 5, 2005. No explanation was provided as to why particulars of the allegations were not provided in advance of that hearing. Be that as it may, the original board order required the grievor to provide particulars by February 25, 2005. Although the board was not advised, the employer agreed to at least two extensions to this deadline, such that the particulars were required by April 4, 2005. The employer was not provided with particulars by April 4, 2005. Mr. Hatzis sent a letter to union counsel on April 15, 2005, stating that the employer took the position that the order had been breached, and that it would seek an order dismissing the grievances. The union subsequently sent the employer two letters, dated April 21 and April 29, 2005, in which it set out some, but not all of the particulars with respect to the two grievances.
The employer pointed out that the grievances allege, among other things, that employer representatives deliberately misled W.S.I.B. officials about a claim filed by the grievor, that the employer, "...purposely [sic] withheld...", and, "...refused to supply...", knowledge and information about the grievor's, "...existing conditions...", and that the employer knowingly allowed the grievor to be subject to, "...constant harassment and targeting by ministry officials over the years." The employer asserted that, if one reviews the letters provided by the union after April 4, 2005, no particulars have been provided with respect to the alleged false statements, withheld information, or years of harassment, even though the grievor had been provided with ample time to provide such information.
The union argues that the allegations in the grievances are of a serious nature and should not be dismissed, particularly given that the grievor alleges that the employer's actions had a negative impact on his health. The union has provided as much information as it can with respect to the particulars, and it would be inappropriate to dismiss the grievances, given the seriousness of the issues at stake. The union submits that the best manner in which to proceed is to allow the grievor to take the stand and tell his full story in his examination in chief. In this way, the employer can be apprised of the full facts and, if the employer needs time to prepare for cross-examination, the hearing can be adjourned to allow for such preparation. In the alternative, if the board wishes to proceed by ordering the grievor to provide more detailed particulars, then the union would require more than one week, as suggested by the employer. Finally, the union submits that the letters of April 21 and 29, 2005 are sufficient, and that the hearing can proceed on the basis of the information set out in the letters.
DECISION
After giving careful consideration to the facts and the submissions of the parties, it is my conclusion that the hearing should proceed on the basis of the particulars supplied in the letters of April 21 and 29, 2005.
An order was issued by the board on January 11, 2005 setting a deadline for the grievor to provide full particulars with respect to the two grievances. The employer, for its own reasons, agreed to at least two extensions to the deadline, ultimately giving the grievor until April 4, 2005 to provide the information ordered by the board. Particulars were provided two weeks after the final extension had passed.
Although I am troubled by the fact that the grievor provided no explanation for his failure to submit timely particulars, particulars were provided, albeit approximately two weeks after the deadline. I had considered dismissing both grievances outright. However, weighing all of the relevant factors, it is my view the hearing should proceed, given the nature of the allegations in the letters, and the fact that the information, although untimely, was provided with sufficient time for the employer to prepare for the June 6, 2005 hearing date.
However, there is no need to allow for further time for the providing of further particulars. The events that are alleged in the grievances are alleged to have occurred prior to November 28, 2002, and in some cases "years" prior to that date. This case was slated to begin January 4, 2005. The grievor had sufficient time to prepare and present the details of his allegations prior to the original hearing date. However, the parties agreed to adjourn the January hearing pending the exchange of particulars. The grievor was provided with one deadline by the board, and then two extensions were granted by the employer. In my view, reasonable opportunity has been allowed for the grievor to set out the details of his complaint sufficient to permit the employer to prepare its case. In all of the circumstances, it is reasonable to conclude that the letters of April 21 and 29, 2005 should constitute the particulars for these grievances, and that the hearing should proceed based on the allegations particularized in those letters.
The parties are directed to prepare to present evidence and arguments on the allegations set out in the April 21 and 29, 2005 letters when the hearing reconvenes.
Dated at Toronto, this 28th day of July, 2005.