GSB#2010-0212

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Raza)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Cynthia Petersen Sack Goldblatt Mitchell LLP Barristers & Solicitors Counsel

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Counsel

HEARING

August 17, 2010

Decision

1By letter dated January 6, 2010, from Mr. M. Parisotto, the Employer terminated the employment of Ms. M. Raza. Through her bargaining agent, Ms. Raza claims that the Employer did not have just cause to terminate her employment. At the time of her discharge, Ms. Raza held the position of Consultant, in the Ministry’s Organizational Effectiveness Division (“OED”).

2On the first day of hearing on August 17, 2010, counsel made opening statements and addressed some preliminary issues. One of those issues involves the production of three items requested by the Association. Employer counsel undertook to provide two of the items, but not the third item, which is a report prepared for the Deputy Minister in July of 2009 (“the Report”). Association counsel requested that I direct the Employer to produce the Report. The other issue is whether the Employer can rely on two matters to support the discharge of Ms. Raza. Association counsel argued that the reliance on these two matters constitutes a change of grounds and that therefore the Employer should be precluded from relying on them in this proceeding. This decision briefly addresses both issues.

3Having regard to the comments of Employer counsel, I do not intend to refer in any detail to the factual context for the submissions on whether I should direct the Employer to produce the Report. I simply note that the Report was prepared for the Deputy Minister for the purpose of improving the operation of OED. Employees were invited to participate in the review on a confidential basis and the Report does not specifically identify any participant. I can appreciate the reluctance to disclose a confidential document. However, the issue before me at

this stage is whether the Report is arguably relevant to any issues in this proceeding. After considering the circumstances and the submissions of counsel on this issue, including the reference to Re Toronto District School Board and C.U.P.E., Loc 4400 (2002), 2002 CanLII 79047 (ON LA), 109 L.A.C. (4th) 20 (Shime) by Association counsel, I am satisfied that the Report is arguably relevant. Accordingly, I direct the Employer to produce the Report to Union counsel on the basis of the conditions that were agreed to at the hearing. The conditions are designed to protect the

confidentiality of the document as much as reasonably possible. Employer counsel will have the opportunity to argue the actual relevance of the Report should the Association intend to rely on it in this proceeding.

4One of the grounds for Ms. Raza’s discharge is that she “used ministry I.T. resources in an inappropriate manner, in contravention of the Ministry’s WDHP Policy and the IT Usage Policy.” As part of its case against Ms. Raza, the Employer intends to rely on three images and the internet usage log contained in the forensic IT investigation report. It appears that its position in this regard was revealed when it responded to a disclosure request from the Association. The Association claims that the Employer had not indicated previously to Ms. Raza or to the Association that it intended to rely on these items in support of the discharge and Association counsel submitted that the Employer’s reliance on them now constitutes an impermissible change of grounds. In support of its position that it can rely on these items to support the discharge, Employer counsel indicated that the decision maker was aware of these items and that they formed a part of the decision making process.

5The prohibition on an employer from changing grounds in a discipline case is a well accepted principle. However, I am not satisfied that the Employer’s intention to rely on the three images and internet usage log to support the discharge amounts to a change of grounds in these circumstances. One of the stated grounds relied on by the Employer to discharge Ms. Raza is her inappropriate use of IT resources. The presence of the three images on her computer and her internet usage certainly fall under a ground relied on by the Employer. Although it is not entirely clear to what extent the Employer relied on these items, it appears that the Employer took them into account when making its decision. The failure of the Employer to indicate

previously that it intended to rely on these items is not, by itself, a basis for precluding the Employer from relying on them. The Association has not claimed any prejudice and it is difficult to see how there would be any prejudice. I was not referred to any provision of the Collective Agreement that would preclude the Employer from relying on the two items in these

circumstances. Accordingly, the Association’s motion to preclude the Employer from relying on the three images and internet usage log is dismissed.