GSB# 2006-0706, 2006-0878, 2006-2854, 2006-2855, 2006-2856

UNION# 2006-0520-0002, 2006-0520-0005, 2007-0520-0001, 2007-0520-0002, 2007-0520-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bhandari)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Neil Hartung Counsel Ministry of Government Services

HEARING

July 19, 2007.

Decision

On June 21^st^, 2007 I issued the following order:

Mr. Vinay Bhandari has filed a number of grievances, including one which alleges that he was discharged without just cause. This Board has already issued an order for disclosure of certain documents. At our most recent day of hearing the Employer asked this Board to order restricted use of the document containing its lengthy particulars. To be clear, the Employer did not want its document regarding particulars to be utilized by the Union or the grievor for purposes other than for this hearing.

The grievor agreed to this order. The Union also consented to this order but wanted to make very clear that it was doing so without prejudice or precedent. Further, Mr. Lees stated that it was only due to the peculiar circumstances of this case that the Union has given its consent regarding this highly unusual Employer request.

At the commencement of our hearing day on July 19, 2007, the Union raised two matters that required the Board’s attention. The first was regarding a disclosure request it made to the Employer asking for any and all documents regarding an OPP investigation that began at in late January or February of 2007. No documents have yet been received by the Union and Mr. Leeb asked this Board to order the Employer to comply with the Union’s request.

Mr. Hartung, for the Employer, stated that full disclosure has been given. To be clear, the Employer has already disclosed any documents in its possession in this regard.

The Union and this Board accepted those assurances.

The second issue raised by the Union was concerning the June 21^st^, 2007 order. It is now the grievor’s request that no restrictions should apply regarding the use of the Employer’s disclosure document. According to Mr. Leeb, the grievor did not understand what was being asked by the Employer last day and so mistakenly gave his consent. Given that the grievor is no longer in agreement with this issue, the Union asked this Board to re-consider and vacate its order.

The Union contended that there can be no dispute that the order was “highly unusual” in the first instance. The grievor should not be precluded from discussing the facts of this case with his family and friends. He is entitled to do so. Mr. Bhandari should not have to worry that he might be in violation of a Board order, even through inadvertence, by having discussions with his family about a matter of such personal significance.

The Employer urged the Board to resist this request. It was submitted that there is insufficient foundation for vacating the order. The Employer took issue with the Union’s claim that the grievor failed to understand what he was agreeing to in the first instance. There is no evidence of such before this Board. Mr. Hartung reminded the Board that when it first raised this issue at the last hearing day, the grievor and his legal counsel adjourned to discuss the matter. It is reasonable for this Board to assume that Mr. Bhandari was properly advised of his rights and options at the time.

The Employer stated that the order, as is, does not preclude the grievor from speaking with or seeking advice from his friends and family about the matters at issue in this case. Therefore, any concern the Union expressed about inadvertent breaches is without foundation. The restriction imposed by the agreed order is that the grievor cannot share the actual document wherein the particulars are set out. The Employer is suspicious about why the grievor would now ask to remove the restriction as set out in the order. To underscore the real concerns of the Employer, the Board was told that since our first day of hearing Mr. Bhandari has twice electronically forwarded email exchanges between himself and Mr. Leeb to counsel for the Employer.

Finally, the Employer said that if, in the future, there is some peculiar individual circumstance that causes the grievor to want the order set aside, the Union can make that particular request of the Board at the time the need arises. However, generally speaking, it was urged that the order should stand.

Irrespective of my view as to whether an order of this Board can or should be vacated as a general proposition, I am of the view that, in any event, this order must stand. I concur with the Employer that both the grievor and the Union had an opportunity to ponder, seek advice and discuss the issue before the order was agreed upon. Indeed, had there been real doubt, an adjournment could have been requested to consider the matter and, absent an agreement, the issue could ultimately have been put to the Board for determination. There was no such request. The Employer asked this Board for the order. After the Union and the grievor discussed the matter it was agreed upon. The order sets out that agreement.

I agree with the Employer’s submission that the grievor is not precluded from discussing the facts that give rise to matters before this Board with his family and friends. If that were the Employer’s request in the first instance, I suspect neither the Union nor the grievor would have given assent.

Finally, given that the Board’s order addresses utilization of the actual document which sets out the Employer’s particulars, it seems to me that the likelihood of an inadvertent breach is remote. As suggested by Mr. Hartung, if some specific need arises in the future for a variance of this order, an individual request can be brought forward and it will be considered.

Dated in Toronto, this 14^th^ day of August, 2007.