GSB#2009-1803

Union#G-4609-BO

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Amalgamated Transit Union - Local 1587 (Farrell)

Union

• and -

The Crown in Right of Ontario (Metrolinx - GO Transit)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Ian Fellows Green & Chercover Counsel

FOR THE EMPLOYER

Glenn Christie Hicks Morley Hamilton Stewart Storie LLP Barristers and Solicitors

HEARING

September 22, 2010.

Decision

1This award deals with the Union’s objection to certain evidence obtained under a GSB subpoena which was presented to the grievor during her cross-examination. The Union asserts these documents should not be admitted for reasons that will be addressed below.

2The grievor, Kim Farrell, had been employed as a bus driver with Metrolinx Go Transit since 2005. She was terminated from her employment in April of 2009 for allegedly using her cell phone while driving her bus from Toronto to Hamilton. The allegations arose from a customer complaint about her rude conduct on that route and the fact she was texting a message on her cell phone while driving. Attached to that written complaint was a photograph taken by the customer on her cell phone. That photograph shows the grievor with her right hand on the steering wheel while she was looking down at a cell phone in her left hand.

3The Employer called the grievor to a meeting to discuss this complaint and the grievor denied using her phone on the day in question. When she was confronted with the photograph, she stated that she had used her phone to check the time but maintained that she had not used it for any other purpose. She specifically denied texting messages on her phone while driving the bus. The Employer determined that termination was appropriate and the grievor filed a grievance challenging that termination. These evidentiary matters arose after several days of hearing and, as stated previously, during her cross-examination.

4There are some background facts that must be included before considering the Union’s position in order to place them in the proper context.

5After her termination the grievor applied for Employment Insurance benefits and her application was refused. She appealed and, in preparing for that appeal, she answered several questions related to the Employer’s statement on the Record of Employment that she had been terminated for misconduct. She answered in the negative when asked whether she had committed a safety infraction, whether there had been any witnesses to the alleged infraction and whether there had been the possibility of injury to any person or any damage to the Employer’s property. When asked why she had been terminated she stated that she had signed a Conditions of Continued Employment in which she had agreed to operate her vehicle in a safe manner for a period of 21 months or face additional discipline. She told the referee that she had completed 14 of those 21 months and that the Employer had used this alleged conduct to invoke the terms of that earlier agreement to discharge her. It should be noted at this time that the grievor had also provided the Referee with her cell phone records but advised him that she had been told that Rogers would only supply her text message records under subpoena.

6These events occurred over the period of time from her termination in August to the denial of her appeal in November. In December the grievor wrote a letter to the Employer in which she acknowledged that she had used her cell phone to send text messages and had acted in a rude manner to a customer. She acknowledged this conduct was unacceptable and expressed regret for having conducted herself in that manner. She also extended an apology to the customer who had filed the complaint.

7In the meantime, in preparation for the arbitration hearing scheduled for January of 2010, Mr. Christie, counsel for the Employer, wrote to Mr. Fellows, counsel for the Union, that he would require “all cell phone records, including records of the dates and timing of all texts, from Rogers in order to adequately prepare for the hearing”. In that letter Mr. Christie noted that the Employer had received her phone records but no information related to text messages received or sent. He also noted that it was his understanding that Rogers would only produce them under subpoena or an Order of the Board. Mr. Christie suggested the parties jointly request an Order from the Board directing Rogers to provide any documentation relating to text messages from her cell phone number for the period August 11 to August 12, 2009. Mr. Christie also suggested that the order include stipulations that the records remain confidential by counsel and that their use be limited to the purposes of the hearing.

8By letter dated December 10, 2009, Mr. Fellows advised Mr. Christie that since Ms. Farrell did not dispute that she engaged in the misconduct alleged, “it was not necessary to deal with this issue”. Mr. Christie then requested a subpoena from the Board and had it served on Rogers in accordance with established practice. He received a telephone call from Rogers concerning the scope of the subject matter and requesting that they provide the documents without the requirement to attend. Mr. Christie agreed and the documents at issue were duly delivered to Mr. Christie in preparation for the hearing.

9At the hearing on March 23, 2010, Mr. Christie asked the grievor how many times she had texted during the Toronto-Hamilton route. She could not remember. When pressed for an estimate, she was unable to respond. It was at this point that he attempted to produce the records he had received from Rogers and Mr. Fellows objected. It was the position of the Union that these documents were inadmissible on the following grounds:

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