GSB#2010-0031

UNION#2010-0542-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hussain)

Union

• and -

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

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry Ministry of Government Services Labour Practice Group Counsel

HEARING

July 28, 2011

Decision

1At the commencement of hearing on July 28, 2011 the Union brought forth a motion seeking further disclosure from the Employer for “any and all documents, emails, investigations, reports regarding IT investigations or knowledge of IT policy violations” for six-named individuals. The Employer disputed the sufficiency of the particulars provided which formed the basis of the Union’s disclosure request.

2Union counsel argued that the disclosure requested was arguably relevant to the matter in dispute since the Grievor was terminated in part as a result of misuse of the Employer’s IT resources. The individuals identified in the particulars were engaging in similar misconduct and that the Employer has the applicable information in its possession. Should the disclosure not be ordered the Union sought an opportunity to provide additional particulars. The Union relied upon OPSEU v. Ministry of Community Safety and Correctional Services (Disclosure Grievance) (F.D. Briggs) GSB#2003-3766.

3Employer counsel argued that the particulars were devoid of any facts besides the name of an individual. Counsel relied on a number of cases to say that the “who” “what” “when” “where” and “how” must be provided and that the particulars must point to a matter related to the grievor. The Employer stressed that the Union did not allege that the information was even alleged to have been within the Employer’s knowledge. The Employer asked that the motion be dismissed. The Employer relied upon OPSEU v. Ministry of Community Safety and Correctional Services (Disclosure Grievance) (F.D. Briggs) GSB#2003-3766; OPSEU v. Ministry of Community Safety and Correctional Services (Union Grievance) (Mikus) GSB#2002-2260; OPSEU v. Ministry of Community Safety and Correctional Services (Sidhu) (Abramsky) GSB#1996-0717; OPSEU v. Ministry of Solicitor General & Correctional Services (Tone) (Dissanayake) GSB#1996-2693.

4I have considered the arguments from both parties and have considered the jurisprudence provided. I have attached the particulars relied upon for the disclosure request in full. I have redacted the Employees’ names from that document for reasons of privacy. In general I find that the Union’s request is overly broad and that the particulars are lacking in sufficiency. More specifically, I accept the proposition that when a party is faced with allegations, it should expect to receive the answer to the questions of “who” “what” “when” “where” and “how”. Only the “who” has been sufficiently identified in these particulars. As an illustrative example, the reference to “inappropriate jokes” makes no reference to how the jokes were inappropriate or what they were. The Employer is entitled to know the nature of the “jokes” and how they relate to the allegations against the Grievor. There is also no information as to how or when the Employer became aware of the existence and transmission of these “jokes”. . This type of detail should be provided for all six-named individuals’ alleged conduct. Like Vice-Chair Briggs in the Disclosure Grievance I do not intend to provide a detailed order of what in my view would constitute sufficient particulars. The parties are in a better position to do so.

5Should the Union wish to pursue the matter it must provide the “what” “when” “where” and “how” for each of the six-named individuals regarding their alleged conduct. The particulars must be provided to the Employer prior to our next hearing date allowing enough time for the Employer to investigate and respond.