GSB#2003-1881

UNION#2003-0999-0026

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (O’Brien)

Union

• and -

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

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

George Parris Ministry of Government Services Labour Practice Group Counsel

HEARING

October 20 and November 24, 2010.

Decision

1Ms. Cheryl O’Brien has three grievances before the board filed in 2003 and 2009 alleging, inter alia, that the ministry has violated her rights under Articles 2, 3, 9 and 20 of the collective agreement and breached the minutes of settlement (MOS) signed in 1995 and the board orders made pursuant to this settlement. She seeks to return to work and to be made whole. This is the fourth interim decision in the matter and addresses two preliminary motions made by the employer argued on October 20 and November 24, 2010, seeking that the board restrict the scope of the evidence.

2In the first motion the employer submits that evidence of events of the period of time between December 11, 2000 and February 19, 2001 should not be admitted. Counsel argued that there is no rational basis to admit this evidence, because it is not material to the 2003 grievance as plead. The union argues that it is necessary to show a pattern of discrimination against the grievor and the particulars make it clear that those are the allegations.

3The first interim decision in this matter addressed, amongst other issues, the scope of the evidence for the 2003 grievance and I decided that the union could not rely on evidence which predated grievances settled by an MOS executed on June 20, 2001. However since the MOS did not specifically purport to settle all the grievor’s outstanding complaints to the date of these minutes, I was not prepared to exclude the evidence after the filing date of the settled grievance. I am also persuaded that it would not be appropriate to exclude this evidence at this time, without fully appreciating its content and the context so as to properly assess whether it is relevant. I am of the view that it is more appropriate to do this during the hearing on the merits of the case. Thus, the employer’s motion to exclude the evidence of the time period between December 11, 2000 and February 19, 2001 is premature.

4In the second motion the employer seeks to limit the scope of the evidence for the 2009 grievances to three years before the date of their filing or back to May 2006. The 2009 grievances allege that the employer has breached the 1995 MOS, which settled Ms. O’Brien’s original complaints filed in 1993 and 1994, while she was an unclassified correctional officer at the Windsor Jail. The union seeks to tender evidence of events since the 1995 MOS, which allegedly show a pattern of discrimination and harassment of the grievor.

5Counsel for the employer argued that the same principle which I applied to the 2003 grievance in the first interim decision in this matter applies here as well. He submitted that it is now well established in the GSB’s jurisprudence that evidence of matters which are the subject of a settlement, should only be permitted in exceptional circumstances. Since grievances filed in 1999 and 2000 were settled by an MOS in June 2001, the union should not be permitted to tender evidence of events which predate the filing of these grievances. He argued that there were no exceptional circumstances to support a decision to allow the evidence.

6Counsel for the employer argued further, that in balancing the interests of the parties, the board has consistently held that evidence of events for three years before the date of the grievance should be enough to establish a pattern of harassment in these cases and avoids making the case longer than is necessary. Thus, counsel submitted that the evidence, which might be admissible for the 2003 grievance, of events between December 2000 and February 2001, when the grievor went back on LTIP, should not be admitted for her 2009 grievances.

7Counsel for the employer relied on the following cases in support of his submission: OPSEU (Fletcher) and Ministry of Community Safety and Correctional Services (2006) GSB 2004-0083 et al. (Leighton); OPSEU (Hawkes) and Ministry of Community Safety and Correctional Services (2009) GSB 2007-2388 (Leighton);OPSEU (Patterson) and Ministry of Children and Youth Services (2006) GSB 1989-1546 et al.(Abramsky); OPSEU (Patterson)and Ministry of Public Safety and Security (2003) GSB 2001-0925 et al. (Leighton); Hotel-Dieu Grace Hospital and ONA (1997) 1997 CanLII 25061 (ON LA), 62 L.A.C.(4th) 164 (M. Picher).

8Counsel for the union argued that the evidence of events beginning after the 1995 MOS to February 2001, when Ms. O’Brien went on LTIP are crucial to showing what happened to her in the workplace, made her sick. Further, evidence from the time that the grievor went on LTIP to the date of the 2009 grievances should also be admitted. He noted that Ms. O Brien’s 2009 grievances specifically allege a breach of the 1995 MOS, which her 2003 grievance does not raise. He also emphasized that the MOS in 2001 settled matters grieved by the Ms. O’Brien that did not address an alleged breach of the 1995 MOS.

9With regard to the “three year rule” counsel agreed with the principle that the board must strike a fair balance between the union and the employer in deciding what evidence is admissible. He argued that in the circumstances it would be fair to allow the evidence from 1995 until the date of the 2009 grievance. Moreover, it would be arbitrary to draw the line at May 2006; especially given Ms. O’Brien was on LTIP from February 2001 and is to this day. Counsel pointed to the particulars that allege that the employer harassed and discriminated against Ms. O’Brien throughout her tenure with the OPP. This treatment which is rooted in the history of her original grievance and the MOS that resulted in her transfer to the OPP is what lead to the grievor becoming so ill that she could not function, in counsel’s submission. It is all part of the pattern which resulted in her not being able to work for almost 10 years.

10Counsel argued in summary that there are exceptional circumstances here to allow the evidence from after the 1995 MOS to the date of the 2009 grievance. It would be fair to allow the evidence subject to a finding of actual prejudice if the employer can prove it during the hearing. Counsel for the union relied on OPSEU (Waraich) and the Ministry of Labour (2004) GSB 2003-0187 (Watters) in support of his submission.

11There are two questions for me to address in deciding the second motion. The first is whether it is appropriate and fair in the circumstance to allow evidence before the date of the grievances settled by minutes in 2001. I have already held in an earlier decision that this evidence is not admissible for the 2003 grievance before me. The rationale for this decision is clear and has been repeated often by this board. The parties to an MOS must be able to rely on it, knowing that matters that are the subject of the settlement will not be admissible in a later proceeding.

12I am persuaded that this principle also applies to the 2009 grievances. Counsel for the union argued that the 2009 grievances were fundamentally different to the 2003 grievance and that the matters settled in the 2001 MOS did not address the same issues as alleged in 2009. However a review of one of the grievances, filed December 11, 2000, settled by the 2001 MOS, shows that the grievor complained about a “violation of my rights under the WDHP” (Workplace Discrimination and Harassment Policy) amongst other things. The allegations in the particulars for the 2009 grievances are that Ms. O’Brien was discriminated and harassed throughout her tenure with the OPP which ended in February 2001. It is clear by the wording of the December 11, 2000 grievance that the grievor was complaining about her treatment with the OPP. Since the MOS signed in June 2001 indicates that Ms. O’Brien agreed to withdraw “all outstanding grievances,” she cannot revisit events which occurred before December 11, 2000, in her 2009 grievance. Thus I must conclude given the facts here and the case law of the board that evidence before December 11, 2000 is not admissible. Evidence of events between December 11, 2000 and February 21, 2001, when she was still working for the OPP, may be admissible if they are relevant and otherwise reliable.

13The second question then is should the evidence between December 11, 2000 and the April 27, 2009 be admissible to support the 2009 grievance. In balancing the interests of the parties in deciding the scope of evidence for a grievance alleging a pattern of harassment over a number of years, this board must take into account the union’s need to adduce enough evidence to prove the alleged pattern of harassment, and fairness to the employer in having to defend allegations of events that have occurred many years before its filing. In Hotel-Dieu, supra, the union wished to introduce evidence going back to the grievor’s hire date, some six years before the grievance. In considering the motion the board noted that the grievor was not unaware of her rights in that case and could have grieved the events early in her employment, but did not. The board also was concerned about the equity and procedural challenges of allowing six full years of what they called voluminous evidence. These concerns lead the board to allow a scope of three years of evidence before the grievance.

14The GSB has held similarly in the Patterson decisions of 2003 and 2006, supra, and others, that a three year scope is normally fair in all the circumstances; that is, it should be enough time to allow the union to show a pattern of harassment and the events should not be so old as to be difficult to defend. Finally, the hearing is somewhat contained.

15While three years before a grievance of this nature will normally be fair in all the circumstances, each case must be considered on its facts. In considering the circumstances here, I am persuaded that it would be arbitrary in this case to limit the evidence of the 2009 grievance to 2006. Since Ms. O’Brien has been out of the workplace since February 2001 and on LTIP since late 2001, there will not be voluminous evidence during this period. The union’s particulars between 2003 and 2008 indicate only that Ms. O’Brien “remained under a doctor’s care and unable to work...”

16Further, there is some commonality in the 2003 and 2009 grievances. In both the grievor seeks to return to work and she complains in her particulars, in part, that her efforts to do so have been thwarted by the employer. In 2003 her medical condition improved and her doctor said that she could return to work. The union’s particulars state that the employer did nothing to return her to work. Incidents which occurred during this time lead to Ms. O’Brien becoming very ill again. The grievor tried again in 2008 to return to work and was fit to return to work on a trial basis in January 2009. The union alleges that the employer has continued to refuse to return the grievor to work. The refusal to return the grievor to work is alleged to be part of a pattern of discrimination and harassment by the employer.

17There are unique circumstances here which justify a departure from the normal practice of allowing three years as the scope of evidence. The grievor’s long period of illness and thus the inability to further her return to work for many years is one. The overlap of the grievances in claiming to be thwarted in her return to work also distinguishes this case from others before the board. Finally, the rational for limiting evidence that could become voluminous if many years of incidents were permitted, does not apply in the circumstances here. Thus, I have decided that it would be fair to allow the evidence back to December 11, 2000, subject to a finding of actual prejudice if the employer can prove it during the hearing.

18For the reasons noted above the employer’s second motion to restrict the scope of the evidence in the 2009 grievances is granted in part. The first motion is premature.