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

September 10, 2007.

Decision

Mr. Bhandari has filed nine grievances including one which alleges that he was discharged without just cause. The other grievances filed included allegations of discrimination and harassment in the workplace as well as suspensions without just cause. The first day of hearing the parties discussed and ultimately agreed that those grievances dealing with discipline and discharge would proceed first and the others would be held in abeyance.

Broadly speaking, it is the Employer’s position that the grievor was discharged mainly for two reasons. The first is because of a work assignment dispute and the second was as the result of a dispute arising from a WDHP investigation. Again, speaking generally it was the Union assertion that the grievor did not engage in much of the conduct alleged by the Employer and, in any event, the Employer’s imposition of discipline has been excessive in the circumstances.

There have been three decisions issued to date in this matter. The first ordered disclosure of certain documents. The second dealt with an agreement between the parties regarding some limitation upon the grievor concerning the use of the document issued by the Employer outlining the particulars. The last decision rejected the grievor’s request to vacate that agreement.

The grievances which are presently before me assert, amongst other things, a violation of Article 3 – No Discrimination. This decision addresses a request from the Employer for this Board to issue an order that would oblige the Union to provide particulars and any related documents regarding the claims of harassment in this case. Mr. Hartung contended that the Employer has virtually no idea of what the grievor believes it has done regarding allegations of discrimination. Ignorance of these assertions leaves the Employer in a position where it has to attempt to prove a negative. The Employer cannot disprove facts of which it is not aware.

The Employer contended that such an order will provide for a more efficient and expeditious hearing. Indeed, it was said that this will “put a box” around the dispute and not allow it to get out of hand. Mr. Hartung further suggested that the order should include a ruling that would preclude the Union and the grievor from later attempting to introduce evidence not particularized. Notwithstanding its onus of proof regarding the discipline and discharge, the Employer explained that once it reviews the Union’s particulars, it will assess who ought to proceed first with presentation of evidence.

The Union began by noting that it has never received a written request for particulars in the matter. However, it acknowledged that it was certainly aware of the Employer’s intention to put this request before the Board. In any event, Mr. Leeb submitted that it would be highly inappropriate for this Board to issue the order as set out by the Employer. The parties agreed to deal first with the matters of discipline and discharge and to set aside the grievances that allege discrimination and harassment.

The Employer bears the burden of proof in the grievances before this Board. It would be improper for the Union to be obliged to set out its case prior to hearing the evidence upon which the Employer intends to rely in this serious matter.

The Union contended that the issue of particulars is “getting somewhat out of hand” before this Board. It should be recalled that in non-discipline grievances the Employer is not expected to provide particulars of its defence. If this Board rules in favour of the Employer in this matter the obvious next step for labour relations before the Grievance Settlement Board would be that statements of defence would become a norm. As a general proposition it makes no labour relations or procedural sense that the party who does not bear the onus should have an obligation to provide particulars of its case.

The Union made clear that it is of the view that the Employer has disciplined and discharge the grievor without just cause. Notwithstanding a reference to Article 3 on the face of various grievances, the Union is not bringing a separate claim during this hearing against the Employer for any discrimination or harassment. Indeed, the Union will not be asking this Board at the conclusion of the evidence to make any finding or declaration of harassment or discrimination. The sole matter that the Board will be asked to rule upon is whether Mr. Bhandari was disciplined and discharged without just cause.

The Union submitted that it has the right in matters such as these to call no evidence of any sort. Once the Union has heard the Employer’s evidence it will assess whether it needs to call any evidence. For this reason it would be improper for the Union to be obliged to provide its particulars prior to hearing the Employer’s case. In the alternative, if this Board determines that particulars should be provided, the Union should not have to do so until the close of the Employer’s case. That is to say, once the Union knows what, if any, evidence it will proffer.

Mr. Leeb noted that notwithstanding the Union’s intention to the contrary, in the event that there is any evidence introduced during the Union’s case regarding discrimination and harassment, the Employer would have the “wide right of reply”. The Employer would have full notice and full opportunity to respond to any such evidence, if necessary. That is the appropriate procedure for this Board to continue.

In reply the Employer contended that this is not an ordinary case. There are allegations that senior management officials engaged in hiring practices that are contrary to the Human Rights Code. Indeed, the entire factual matrix of this case has allegations of discrimination. A fulsome treatment of any discrimination and harassment is essential in this matter. Simply put, it is not fair for this Employer to be obliged to proceed with its case without full knowledge of the particulars according to the grievor.

decision

The Employer is of the view that, given the nature of this case it would be efficient and more expeditious for this Board to order particulars from the grievor. The Union contends that to make such an order at this time would undermine the grievor’s rights and relieve the Employer of some of its burden of proof.

While I understand the Employer’s view and accept that it is motivated by hopes for efficiency, I have am not prepared to grant the request at this time. I am of the view that, as a general proposition, the disclosure of particulars and evidence in advance of the hearing has been a step forward in the litigating of grievances before this Board. However, this is a discharge case. Discharge has often been referred to as the “capital punishment” of labour relations. Grievances regarding discharge are of great import to both parties for all the obvious reasons. As is usual in discharge matters, there is a significant onus on the Employer to prove its case. I am concerned that to issue the requested order at this point in the proceedings could potentially prejudice the grievor’s rights. It certainly does not make sense to me to do so merely for the sake of efficiency and expediency.

The Union and the Employer specifically agreed to put aside the grievances dealing with discrimination and harassment until the conclusion of the discipline matters. The Union has assured this Board that is does not intend to deal with those issues during this hearing and will not be asking for any conclusions in that regard. In these circumstances it is therefore difficult to see why, as a preliminary matter, I should order particulars as requested by the Employer.

I understand and appreciate the Employer’s concern that there may be evidence regarding allegations of discrimination and harassment notwithstanding the Union’s assertion that it intends otherwise. If the Employer’s fears in this regard are realized as the hearing progresses a renewal of this request will be entertained. Generally speaking, the Employer will enjoy a broad right of reply and, of course, it can ask for adjournments if it is faced with a surprise for which it could not reasonably have been prepared.

My decision in this matter might well have been different in the absence of the parties’ agreement to put the grievances regarding discrimination and harassment aside while the discipline grievances continue. Arguably, without that agreement there would be a need for the Employer to have a comprehensive appreciation for the particulars of those allegations at the outset. However, given the method of proceeding agreed upon to date, this motion is denied at this time.

Dated in Toronto this 1^st day of October, 2007.