GSB# 2004-0083, 2004-0084, 2004-2607, 2004-2608, 2004-2609, 2004-2610

UNION# 2003-0248-0183, 2004-0248-0006, 2004-0248-0098, 2004-0248-0099, 2004-0248-0100, 2004-0248-0101

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fletcher)

Union

• and -

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

Employer

BEFORE

Deborah J. D. Leighton

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Janice Campbell Counsel Ministry of Government Services

HEARING

June 23, 2006.

Decision

Ms. Tammy Fletcher, a correctional officer (CO) at Hamilton Wentworth Detention Centre, currently has six grievances before the board. The first, filed on February 15, 2004, alleges that she has suffered discrimination and harassment in her workplace, contrary to the collective agreement, the policies of the employer and the Human Rights Code. Subsequent grievances include specific complaints about the investigation of a WDHP complaint, shift schedule changes and a poisoned workplace, and reiterate the discrimination and harassment allegations. The last of these grievances was filed on September 1, 2004. A number of preliminary issues are outstanding between the parties, including 1) whether grievances filed after September 1, 2004 should be consolidated with the grievances before me; 2) whether the union’s particulars requested by the employer are sufficient; 3) whether the scope of the evidence should include evidence of an incident which was the subject matter of minutes of settlement; and 4) an outstanding request by the union for disclosure of documents. The parties indicated that they might be able to resolve all but the scope of the evidence. I was also advised that other issues might be raised at the next hearing day. These relate to timeliness and other procedural issues with regard to some of the grievances.

This decision addresses the scope of evidence issue only. The union seeks to adduce evidence of an incident, which occurred on the picket line during the 2002 OPSEU strike. Ms. Fletcher filed three (3) grievances relating to the incident and a subsequent transfer to another institution, and these grievances were settled by memorandum of settlement on December 2, 2002.

The purpose of this evidence, according to Gavin Leeb, counsel for the union, is to show that the incident and the grievor’s complaint about it are the impetus of the alleged discrimination and harassment that the grievor suffered when she returned to the workplace in March 2003, which she alleges continues to this day. The evidence is therefore necessary for the context of the case.

The employer opposes the admission of this evidence. Counsel for the employer, Janice Campbell, contends that the proposed evidence is the subject matter of a memorandum of settlement, which is final and binding on the parties.

THE EMPLOYER’S SUBMISSION

The employer objects to the introduction of this evidence primarily because it was the subject of a grievance settlement and because it would violate the return to work protocol signed by the government and the union after the 2002 OPSEU strike. Counsel for the employer stated that the December 2, 2002 memorandum of settlement resolved three (3) grievances filed by Ms. Fletcher on June 4, 2002. The first one alleged:

The grievor has suffered differential treatment in regards to the application of the employer’s zero tolerance for violence in the workplace policy.

The second grievance alleged:

The grievor was transferred to the Niagara Detention Centre despite having completed a job trade to the HWDC. The transfer is retaliation against the grievor for filing a criminal charge against a HWDC Operational Manager. The transfer is contrary to the provincial and local return to work protocol.

The third grievance alleged:

On April 26 the grievor was assaulted by an HWDC employee. This resulted in the filing of a criminal charge. The employer has refused to remove the charged employee from duty at the HWDC in spite of its policy of zero tolerance for violence in the workplace.

The grievor sought various remedies including full redress. In minutes of settlement dated December 2, 2002 the parties agreed to “full and final settlement of these grievances, on a without precedence, without prejudice basis …” Clause 10 of the Memorandum provided specifically:

Should the accused managers be found guilty, this settlement does not preclude Ms. Fletcher from filing a new grievance with respect to her return to work.

Counsel for the employer argued