GSB# 2000-1615

UNION# 2001-0205-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bono)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION

Mark Barclay Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Fateh Salim Counsel Ministry of Government Services

HEARING

September 6, 2007.

Decision

1The written grievance in this matter was filed with the employer on or before January 8, 2001. It was later referred to arbitration. The arbitration hearing began on November 30, 2001. Thereafter there were a series of reschedulings and adjournments on agreement of the parties. In the result, the next hearing day was September 6, 2007.

2In 2000 the grievor made requested consideration for transfer to a suitable job elsewhere in the Ministry. Later that year the employer posted two positions of the sort to which the grievor says the employer could and should have transferred her pursuant to article 6.6.1 of the collective agreement. In his opening statement on November 30, 2001, the union’s representative alleged that in failing to assign the grievor to one of the vacant positions in question the employer had acted in bad faith, misconstruing its own policy on transfers and concluding (if, as it later alleged, it had) that those positions did not meet the requirement in clause (a) of article 6.6.1 that they be “identical” to the grievor’s position.

3At the hearing of September 6, 2007 the employer raised issues about the delay in continuing the hearing. It also raised issues about the failure of the grievor to attend the hearing, particularly when in pre-hearing correspondence with counsel concerning various preliminary issues I had directed that both parties come prepared for a hearing that might address both the preliminaries and the merits.

4The issues raised by the employer were resolved by the parties’ agreeing on the following:

• The hearing will be adjourned to Monday, December 3, 2007;

• Unless the matter is disposed of before then, the grievor will be required to attend the hearing on December 3rd, or any substitute date to which the parties may agree before then;

• There will be an order in my usual terms, requiring that by October 5, 2007, the union deliver written particulars of the facts on which it relies in this matter and produce copies of any documents on which it relies, including particulars and documents concerning any transfer under Article 6.6.1 which the union says the employer made between jobs that were no more “identical” than the grievor’s job was to the jobs posted;

• If upon receipt of the union’s particulars employer counsel concludes that the facts alleged do not amount to a breach of the collective agreement, he or she will be at liberty to promptly bring a motion to have the grievance dismissed for failure to allege a prima facie case;

• Such a motion would be dealt with by telephone conference if possible well in advance of the hearing of December 3, 2007 and, if dismissed, would be without prejudice to any motion to dismiss that employer counsel might later make at the end of the union’s case in chief; and,

• The issue whether the hearing on the merits would continue from the point at which it ended on November 30, 2000 or begin again at the beginning would remain outstanding unless and until it is resolved by agreement of counsel or raised with me for disposition prior to any further hearing on the merits.

As for all but the third of these points, I confirm that I so order. The third point is addressed in the paragraphs that follow.

5I direct that the union provide the employer with full written particulars of the allegations of fact on which it relies in this matter, together with copies of any documents in the possession, custody or power of the union or of the grievor on which the union may wish to rely in these proceedings. The particulars provided shall include particulars of any acts or omissions on which the union relies in these proceedings to demonstrate that the employer acted in “bad faith” and, without limiting the foregoing, shall include particulars of any transfer under Article 6.6.1 which the union says the employer made between jobs that were no more “identical” than the grievor’s job was to the jobs posted, including the name of the employee transferred, the approximate date of the transfer, the job duties of the job from which the employee was transferred and the job duties of the job to which the employee was transferred.

6With respect to each act or omission alleged, the union’s particulars shall indicate what was done or not done, when, where, by what means and by whom. If conduct is attributed to the employer or the union, the particulars shall indicate who is alleged to have so acted on that party’s behalf. Conclusory statements based on unparticularized allegations of fact are not sufficient. The allegations of fact set out (exclusive of any conclusory statement or argument) should be sufficiently comprehensive that it would be unnecessary for the union to call any evidence if the employer were to admit that all of those allegations of fact were true. It is not necessary for the union to include in its particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out in its particulars. It is not necessary for a union to identify in its particulars any witness to an event in question, unless the presence of that individual is a material fact on which the union relies.

7The union’s particulars shall set out the remedies sought with respect to the grievance.

8The union’s particulars and documents shall be delivered to employer counsel by 5:00 p.m. on Friday, October 5, 2007. That deadline may be modified by agreement of the parties or by further order.

9If the union fails to produce a document or provide particulars of an allegation in accordance with this order it may not introduce that document into evidence or tender evidence about that allegation in these proceedings without leave.

10The provisions of this order do not preclude an application by either party for further directions with respect to particulars or production of documents, after the union’s particulars and productions are delivered.