GSB# 2004-0901
UNION# 2004-0582-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Gareau)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
Gavin Leeb Barrister and Solicitor
FOR THE EMPLOYER
Suneel Bahal Counsel Ministry of Government Services
HEARING
October 28, 2005.
Decision
On February 28, 2004, the grievor, Anne Gareau, filed a grievance alleging that her employer, the Ministry of Community Safety and Correctional Services, had “violated my rights under the Ontario Human Rights Code by failing to accommodate me as prescribed in the Human Rights Code.” The merits of that grievance are before Vice-Chair Loretta Mikus. Also before Vice-Chair Mikus is the Union’s motion for interim relief in that matter, presently scheduled for November 14, 2005. The sole issue before me is whether, prior to the hearing for interim relief, the Union must provide the Employer with additional particulars on the underlying grievance. The Employer has moved for an order compelling the Union to provide additional particulars prior to the November 14, 2005 hearing for interim relief.
At the hearing, the parties presented to me a number of documents: a copy of the original grievance; the Union’s letter of particulars dated December 2, 2004 and the package of documents which were couriered to counsel for the Employer, Mr. Suneel Bahal, on the same date; correspondence from Mr. Leeb, counsel for the Union, to Mr. Bahal outlining the Union’s motion for interim relief; and Mr. Bahal’s response, dated October 16, 2005, outlining his position that the particulars provided were inadequate. Both parties then argued their respective positions.
After carefully considering the documentary evidence provided and the submissions of the parties, I conclude that the Employer’s motion must be denied.
Principles of natural justice require that a party in a labour arbitration know what the dispute is about – that each side know the case that it is required to meet. This is just as true in a motion for interim relief as it is for the case on the merits. OPSEU (Union Grievance) and Ministry of Public Safety and Security (2003), GSB No. 2113/02 (Dissanayake).
The first part of the two-part test in a motion for interim relief is that “there must be an arguable case on the merits of the grievance.” OPSEU (Clarke) and Ministry of the Attorney General (2005), GSB No. 2004-3263 (Abramsky). Accordingly, the party opposing the motion for interim relief must understand what the grievance is about in order to contest this point.
Generally, particulars involve the “who, what, where, when and how” of the facts of the alleged violation. OPSEU (Simon et al.) and Ministry of Correctional Services (2001), GSB No. 1390/00 (Mikus).
In this case, it is my view, that the Union’s letter if December 2, 2004, combined with the grievance and the documents disclosed, provide the required information. The grievance itself identifies that the grievor alleges that she has not been properly accommodated under the Ontario Human Rights Code. The December 2, 2004 letter from the Union states that the “central issue in this grievance is that of accommodation of the Grievor’s disabilities…” It states that she had been moved to the Control room, and that “[d]espite this change, she continues to miss a substantial amount of working time due to her ongoing medical condition.” It adds that the grievor has, since 1998, been “seeking, without resolution, accommodation in the form of re-classification and/or reduced working hours and a schedule suited to her medical restrictions.” It further states that “the Union will assert that, particularly in view of recent medical reports such as the one attached which determine that her existing position/hours are not suitable, the employer has failed to fulfill its obligation to assess other positions and/or working arrangements which would suitably accommodate the Grievor.” Finally, it states that it was also “the Union’s position that as long as suitable accommodation has not been provided, it is inappropriate for the employer to approach the Grievor’s absenteeism as an attendance management issue.”
Counsel for the Employer asserts that the particulars provided are general allegations which lack specifics, and that it needs to know the specifics of her claims. With respect, I cannot agree that particulars provided are insufficient. The claim is that the accommodation in Control, which involves 12-hour shifts, was unsuitable in that she continued to miss work under that accommodation. It relies on the November 16, 2004 medical information from Dr. Usha. It asserts that the Employer should have explored changing her hours/schedule or considered other positions in an attempt to accommodate the grievor. In my view, the grievance, the December 2, 2004 letter and the documents reveal the “who, what, where, when and how” of the allegations, sufficient for dealing with the interim motion. In my view, a number of the Employer’s concerns – that there is no medical which shows that the grievor is unable to work as a Correctional Officer and that the Union has not demonstrated how her assignment violated the medical restrictions on file – are more in the nature of potential defenses to the Union’s claims, rather than the basics of the Union’s position.
Accordingly, for the reasons set forth above, the Employer’s motion for additional particulars is denied.
Issued at Toronto this 31st day of October, 2005