GSB#2005-1443

UNION#2005-0530-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Tardiel et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Christopher J. Albertyn

Vice-Chair

FOR THE UNION

David Wright, Ryder Wright Blair & Holmes LLP, Barristers & Solicitors

Eric del Junco, Barrister and Solicitor

Donald McLeod, The McLeod Group, Barristers and Solicitors

FOR THE EMPLOYER

Melissa Nixon Ministry of Government Services Counsel

HEARING DATE

October 15, 2009.

Decision

1The Board has been engaged in a process of mediation-arbitration pursuant to Article 22.16 to resolve the individual dimension of the grievances before it in these matters. Many of the individual grievances have been resolved by agreement between the parties, but some remain unresolved.

2The mediation-arbitration process has been conducted in an expedited manner so as to obtain an early, effective result. To date there has not been litigation of any of the disputes. However, the remaining grievances will need to be arbitrated.

3Pursuant to Article 22.16.2, “when determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and will impose such conditions as he or she considers appropriate.”

4In the Board’s decision of July 11, 2008, an objective of the mediation-arbitration process was described as being “to settle the grievances in a manner that is fair to each grievor, given their particular individual circumstances, and generally reasonable”. The contemplation in that decision was that a brief decision would issue in each case determining the grievance.

5The procedure set out below will apply to those individual grievors who are identified by the Union as having a claim more substantial than that they were obliged to work in a poisoned work environment, and whose grievance has not been settled by agreement.

6In light of the process already ordered, and having considered the submissions of the parties, it is the Board’s determination that the following limitations on evidence will be imposed and that the following conditions are appropriate for the arbitration of these grievances:

1. Solely for the purposes of this case, to avoid lengthy litigation, and entirely without prejudice to any other proceedings, the Employer will accept liability for negligence resulting in the harm suffered by the individual grievors as described in their grievances and amplified in their will-say statement. As a result, the Employer will save the parties from lengthy litigation exploring whether or not the Employer was in fact negligent, and is in fact liable, and if so, to what extent. It is understood that the Employer’s acceptance of such liability applies solely for the purposes of the grievances to be addressed under this procedure.

2. The Employer’s liability will be deemed to have diminished over the course of 2008 and in 2009, given the steps it has taken to improve the work environment, pursuant the mediation-arbitration process as a whole, over this recent period. To this end the Employer may submit a will-say statement detailing these steps, not less than 16 working days before the date of hearing.

3. The individual grievors are entitled to update their will-say statements respecting the personal impact of the letters and other events and in light of events occurring since their last will-say. These updated will-says will be provided to the Board and to Employer counsel at least 10 working days prior to the date of hearing. The Employer will be entitled to respond to the grievors’ updated will-say statements with its own will-say statement at least 5 working days prior to the date of the hearing. There will be no oral evidence with respect to the updated will-say statements, unless directed by the Vice-Chair.

4. The only evidence will be the will-say statement (as amplified in the private hearings held already) and any updated will-say statement. There will be no other evidence at the hearing, save that either party may seek written clarification of an allegation in advance of the hearing or as directed by the Vice-Chair.

5. In assessing the appropriate remedies to be awarded to an individual grievor, the Board will take into account steps the Employer has already taken, including any accommodation of the grievor concerned.

6. At least 10 working days prior to the date of hearing of a individual grievance, the Union will provide the Employer and the Board with written particulars setting out the remedies the Union seeks with respect to the individual grievor’s grievance. The particulars will contain an explanation for the remedies claimed, without argument.

7. At least 5 working days before the hearing, the Employer will respond with written particulars setting out the remedies the Employer submits are appropriate, if any, under each of the headings of the Union’s claim. The particulars will contain an explanation for the remedies claimed, without argument. To the extent the Employer relies upon the steps referred to in paragraph 5 above, it will provide details.

8. At the hearing, on the basis of the will-says, private statements, and any updated will-says, the Union will justify in argument its claims for the individual grievor.

9. The Employer, on the basis of the will-says, private statements, and any updated will-says, will have an opportunity to respond at the hearing, to justify in argument its response to the Union’s claims for the individual grievor.

10. The Union will have a brief opportunity to reply.

11. Following the hearing, pursuant to Article 22.16, the Board will issue a succinct decision.