GSB#2002-2964, 2002-2965, 2002-2966, 2004-2332, 2005-0944, 2005-3167
UNION#2003-0634-0001, 2002-0634-0005, 2002-0634-0004, 2004-0634-0003, 2005-0634-0001, 2005-0634-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (McCormick)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Barry Stephens
Vice-Chair
FOR THE UNION
Caroline V. Jones Paliare Roland Rosenberg Rothstein LLP Barristers Counsel
FOR THE EMPLOYER
Melissa Nixon Ministry of Government Services Counsel
TELECONFERENCE
September 4, 2008.
INTERIM AWARD
1This is an interim award dealing solely with the union’s motion for non-suit with respect to the disciplinary issues before me.
2The parties have been in mediation and litigation for several years in this matter, before several different vice-chairs.
3The grievances raise issues with respect to discipline imposed on the grievor, as well as claims by the grievor that she had been subjected to harassment and discrimination in the workplace, and other matters. At the outset, I ordered that the employer would first be required to present its evidence with respect to the disciplinary matters. After 47 days of testimony we have reached the end of the employer’s case on discipline. The union has brought a motion for non-suit, and seeks to have the disciplinary issues dismissed.
4The discipline relates to three matters. First, the grievor was disciplined for an incident in which it is alleged she undermined her shift leader, Darlene Jackson. Second, it is alleged that the grievor behaved inappropriately in a discussion with a member of the public with respect to Ministry matters. Third, it is alleged that the grievor demonstrated a discriminatory attitude in the workplace. The employer confirmed at the hearing that issues of job performance also mentioned in the letter of discipline do not form part of the case supporting discipline.
5The GSB has developed a number of key principles which are outlined in Ontario Public Service Employees Union (Whan) v. Ontario (Transportation), 2007 CanLII 6889 (Dissanayake), and which were subsequently followed and applied in Ontario Public Service Employees Union (O’Connor) v. Ontario (Finance), 2008 CanLII 9600 (Lynk); Ontario Public Service Employees Union (Hepplestone) v. Ontario (Ontario Science Centre), 2007 CanLII 5887 (Herlich); Ontario Public Service Employees Union (Anthony) v. Ontario (Community Safety and Correctional Services), 2007 CanLII 14608 (Harris):
The key principles to be extracted from the Board’s jurisprudence may be summarized as follows:
The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.
In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.
In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.
In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.
Where a non-suit motion is granted a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.
6In the case before me, the employer agreed that the union should not be put to an election.
7The union’s submissions with respect to the non-suit relied heavily on arguments that I would generally categorize as attacks on the credibility, reliability and consistency of the evidence. However