GSB#2006-2863, 2006-2864, 2006-2869, 2006-2870, 2006-2871, 2006-2872, 2007-0235,

2007-1321, 2007-1323, 2007-1324, 2007-1498, 2008-0711, 2008-0712, 2008-0713,

2008-0714, 2008-1127, 2008-1128, 2008-1129, 2008-1130, 2008-1468

UNION#2006-0546-0058, 2006-0546-0059, 2007-0546-0003, 2007-0546-0004,

2007-0546-0005, 2007-0546-0006, 2007-0546-0008, 2007-0546-0026, 2007-0546-0027,

2007-0546-0028, 2007-0546-0032, 2007-0546-0053, 2008-0546-0006, 2008-0546-0007,

2008-0546-0008, 2008-0546-0010, 2008-0546-0011, 2008-0546-0012, 2008-0546-0013,

2008-0546-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Morsi)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance & Revenue)

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes Barristers and Solicitors

FOR THE EMPLOYER

Jennifer Richards Counsel Ministry of Government Services

HEARING

October 30, 2008.

Decision

1The Union seeks an order requiring the Employer to disclose the assignment control sheets, expense claims and time sheets for a large number of different employees. The Employer previously agreed to disclose the requested documents for some of the named individuals but maintains that the particulars that have been provided are insufficient to support the requested disclosure for the remainder.

2The grievor conducts field audits for the Ministry of Finance. The original grievance arose from her supervisor’s refusal to pay mileage from her home to the vendor where she performed her audits. The grievances before me allege that the Employer has been inconsistent in its application of the travel and expense policy both over time and within the public service generally. Subsequent grievances relate to the use of a rental car or taxi in the performance of her duties. She also alleges that she has been subjected to differential treatment, discrimination and harassment.

3The grievor was initially reluctant to name individual co-workers in the particulars of her allegations. An Order for full particulars was issued that included a directive to provide the names of co-workers where relevant. Consequently, particulars have been provided over the course of several months and are contained in a number of different pieces of correspondence. The parties have also had several discussions regarding the sufficiency of the particulars and the extent to which the Employer will comply with the Union’s request for disclosure. A previous motion for disclosure was allowed in part and permitted the Union to name the individual employees it alleged were treated differently than the grievor. This motion arises from those further particulars.

4The most recent particulars refer to all of the employees for whom disclosure is now sought. Typically, these additional particulars do not specifically allege that the identified employees were treated differently than the grievor. Rather, it only states that the named employees were paid mileage expenses from home to the vendor and return to home. In some instances the grievor was advised of this payment directly by the employee, in others she was advised by a third party of the identity of employees that were reimbursed for travel time and mileage expenses from home to vendor.

Submissions

5The Union maintains that all of the particulars that it has submitted to date must be read together and that the most recent iteration, in which specific employees are named, must be cross referenced back to the details of the grievor’s allegations set out in earlier correspondence. The particulars have alleged differential application of the travel and expense policy and the particulars now identify individual employees who have been permitted to recover expenses that were denied to the grievor. Given the allegations, the expense and travel claims of these employees meets the test of arguable relevance and should therefore be disclosed. The Union referred me to OPSEU (Mustari et al) and Ministry of Community Safety and Correctional Services (2007), GSB No. 2004-3890, (Johnson).

6The Employer submitted that the particulars are insufficient to support the Union’s request for disclosure. The Employer acknowledges that there are instances where employees are permitted to travel directly from their home to the vendor and are paid accordingly. Consequently, particulars that do no more than confirm this concession do not support an allegation of differential treatment. The Employer submits that it should not be put to the onerous task of producing the requested records without a direct link to the specific allegations at issue. The Employer relied on the following decision of the Board in support of its motion: OPSEU (Patterson) and Ministry of Children and Youth Services (2007), GSB No. 2003-1588 et al, (Abramsky).

Decision

7The Union seeks disclosure of a significant volume of records. The Employer agreed to disclose the requested claim forms for a limited number of employees; the Union seeks further disclosure for an additional 24 individuals for periods spanning one to two years. The Employer has accepted that if properly particularised, the documents requested would be arguably relevant. Nonetheless, it maintains that the details provided do not specifically allege how the named individuals were treated differently than the grievor. In these circumstances, the Employer submits that it should not be put to the time and expense involved in disclosing the records requested by the Union. The Union maintains that the allegation of differential treatment was detailed in earlier versions of the particulars and that all of the particulars, when read together, are sufficient.

8Having reviewed the particulars in their entirety, I am satisfied that they are sufficient to warrant disclosure of the travel and assignment records for some of the employees listed. The grievor has consistently maintained that there was a change in the application of the travel policy so that she was no longer compensated for travel from home to the vendor. In her most recent particulars, she cites a number of employees who have confirmed that they were permitted to claim time and mileage from their home. Although the particulars do not expressly repeat the allegation of differential treatment, I consider it reasonable to read those particulars in the context of the earlier submissions. In my view this is not a mere fishing expedition. Given the nature of her general allegation, I find that the travel and assignment sheets of these employees are arguably relevant to these proceedings. The same reasoning applies to the taxi and rental car claims.

9There are also, however, a number of individuals for whom a similar inference cannot reasonably be made. The grievor learned from third parties that some of her other colleagues were paid from home to vendor. In none of these instances was there any indication that any greater detail was given to the grievor or that the person who provided the information actually possessed first hand knowledge of the pay claim or assignment at issue.

10In a previous ruling, I indicated that I was sympathetic to the Union’s argument that much of the information that might normally be provided by way of particulars is uniquely in the possession of management. In light of that reality I indicated that I was inclined to be generous in an assessment of the sufficiency of particulars in this case. While I am generally sympathetic to the Union’s position, I am also mindful of the significant time and expense required of the employer in searching for and then disclosing all of the documents requested. Although I am prepared to read the most recent particulars in the context of the earlier allegations, the grievor must still provide particulars that offer a reasonable foundation or link to the allegation of differential treatment.

11Where a fellow employee discussed the issue with the grievor and told her that they were paid for travel from home to the vendor, they would be personally aware of whether they had been assigned from home or the office. That is the relevant distinction in this case. The issue is not just whether individuals are ever paid for travel from home but whether they were or are always permitted to travel directly to the vendor from home, regardless of where the vendor was located. Where a third party identified another employee as someone they understood was paid for travel from home, it is not at all clear that they would have known the relevant details and therefore whether it corresponded with the grievor’s allegation of differential treatment. At that stage it becomes somewhat of a guessing game. In that circumstance, I do not consider the particulars to be sufficient. That is, where there is either a general statement, made by a third party that individuals were paid from home to vendor or where the source of the information has not been clearly identified the particulars are not sufficient to warrant the requested disclosure.

12The Union’s motion is allowed in part. In addition to those previously agreed, the Employer will disclose the assignment control sheets, expense claims and time sheets for the following employees for the time period identified in Union counsel’s letter of October 3, 2008: James Chong, Tony Grech, Leo Herskovits, Hanipha Mohammed, Maurice Gabay, Faleena Rawana, Sou Tajik, Mario Cerminara, Anna Lundrigan and Terry Watson.