GSB#2006-2524, 2007-0191, 2007-3333, 2009-1097, 2011-2488, 2011-2489, 2012-0006, 2012-0872, 2012-3148, 2012-3406, 2012-4689

UNION#2006-0517-0044, 2007-0517-0026, 2008-0517-0004, 2009-0517-0084, 2011-0517-0032, 2011-0517-0033, 2012-0517-0016, 2012-0517-0027, 2012-0517-0093, 2012-0517-0113,

2013-0517-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McClelland/Ward)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Sheila Riddell Ryder Wright Blair & Holmes LLP Counsel

Mike Biliski Koskie Minsky LLP Barristers &Solicitors Counsel

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Legal Services Branch Counsel

HEARING

October 7, 2013

Decision

1Ms. Barbara McClelland was discharged from her employment as a Correctional Officer at Toronto West Detention Centre. Her letter of termination stated, in part:

On November 27, 2012 you attended an allegation meeting to discuss the following allegations:

On Friday October 5, 2012 you made inappropriate, violent and unwanted physical contact with another employee.

You were not forthright with the employer during its investigation when you characterized the inappropriate, violent and unwanted physical contact as a hug.

After carefully reviewing all of the information gathered by the Employer during its investigation, as well as your own responses to the above noted allegations, I have determined that the above-noted allegations are substantiated. I find the version of events that you have communicated throughout this entire investigation to lack credibility. Even when faced with video evidence to the contrary (a copy of which was provided to OPSEU on November 19, 2012), you persisted with your version of events. As a result, you have violated Ministry policies and procedures, including but not limited to the following:

• Workplace Violence Prevention Policy

• Institutional Services Policy and Procedures Manual – Administration – Employee Related – Staff Conduct and Discipline

• Institutional Services Policy and Procedures Manual – Administration – Employee Related – Statement of Ethical Principles

• Institutional Services Policy and Procedures Manual – Administration – Reports – Report Writing

Lastly, as you were charged criminally on October 5, 2012, with assault, please be advised that the Employer reserves the right to rely on any future criminal convictions and/or proceedings with respect to your conduct.

2Subsequent to her termination, Ms. McClelland filed a grievance that she had been discharged without just cause. Prior to her discharge she had filed other grievances alleging discipline without just cause, discrimination and harassment.

3In February of 2013 Ms. Sylvie Ward, the Correctional Officer who was the subject of either assault or a “hug”, filed a grievance that stated:

I grieve the employer has violated the collective agreement by not complying with employer expectations of Bill 168. The Employer had a responsibility to manage the workplace and violent employees with known violent tendencies towards other staff during the hours of duty in the workplace. Violation of but not limited to Article 2.

4Ms. Ward’s grievance was processed through the grievance procedure and together with another grievance was put before Vice Chair Abramsky for hearing and determination.

5This Board is seized of all of Ms. McClelland’s grievances.

6Earlier in our process, it was agreed by the parties that the discipline and discharge grievances would be heard and determined first.

7At a recent day of hearing scheduled for the parties to provide opening statements and begin presentation of the Employer’s evidence, the Employer raised a motion to consolidate the above noted grievance of Ms. Ward with the matters before this Board. The day was adjourned, notice given to Ms. Ward and the matter rescheduled to allow this motion to be heard.

8This decision deals only with the Employer’s request to consolidate these grievances.

9The Board was provided with the Union’s particulars regarding Ms. Ward’s grievance which were dated September 18, 2013. In those particulars an incident that occurred on October 5, 2012 was set out in some detail. Simply put, it was asserted that Ms. McClelland assaulted Ms. Ward in the “sign-in room”. Also included in those particulars were assertions and facts alleging that Ms. McClelland was known to the Employer to be a “danger to other persons”.

10In her grievance dated February 26, 2013, in addition to declatory relief, Ms. Ward is seeking to be made whole “for all lost earnings, including premiums and overtime and/or an order reinstating any and all vacation and sick credits used”, compensation for ongoing medical expenses and an order for damages “for the pain and suffering Ms. Ward has endured as a result of the Employer’s failure to provide a safe workplace……”

11At our hearing for the Employer’s motion to consolidate Ms. Riddell, counsel for Ms. McClelland, stated that she had no objection to consolidation of these matters and would make no presentation regarding the Employer’s motion. However, Mr. Biliski, counsel for Ms. Ward, urged that the Employer’s request for consolidation be denied.

12Ms. Richards, for the Employer, noted that the Rules of the Board allow for consolidation of matters and this is precisely the type of situation where it is appropriate to do so.

13The Rules state, at paragraph 3:

Where two or more proceedings are pending before the GSB and it appears to the GSB that,

a. they have a question of law or fact in common;

b. the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

c. for any other reason an order ought to be made under this rule, the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that:

d. the proceedings be consolidated, or heard at the same time or one immediately after the other; and/or

e. any of the proceedings be stayed until after the determination of any of them.

14The Employer urged this Board to consolidate these matters because both share instances of fact and probably law. Further, consolidation is needed to reduce the real possibility of conflicting findings of fact because even at the very early stages of these matters the grievors presented very different versions of events. Finally, efficiency of the Board’s resources will be served by a consolidation given that there will no doubt be a duplication of witnesses in both matters with a focus on the common incident. The Employer relied upon Re OPSEU (Hunt) and Ministry of the Attorney General GSB#2001-0534 (Abramsky); Re OPSEU (Smith) and Ministry of Correctional Services GSB#545/94 (Kaplan); OPSEU (Upson) and Ministry of Community Safety and Correctional Services GSB#2009-0405 (Harris).

15The Union, on behalf of Ms. Ward, does not dispute the general principles regarding consolidation orders. However, it was contended that simply because matters share common facts ought not to lead to a consolidation order. Indeed, in this case, the Employer is seeking a consolidation request for its own tactical advantage and not for efficiency purposes. The Employer’s request in this regard is driven by its perception that it will face a possible procedural unfairness. Further, according to Mr. Biliski, the criteria for consolidation as set out in the rules have not been met in this case because if there is no dispute between the parties that there was an assault it cannot be said that there is a common fact between the two grievances that is in question.

16The Union was also concerned about the length of time that a consolidated hearing will take. It is apparent that much time will be needed given the totality of the issues arising from the grievances of Ms. McClelland. Ms. Ward ought not to be disadvantaged by such a significant delay. Finally, the Union submitted that it would be highly stressful for Ms. Ward to have to sit in the same hearing room as Ms. McClelland, the very person who assaulted her and brought about the filing of her grievance.

17The Union relied upon OPSEU (Samsone) and Ministry of Community Safety and Correctional Services GSB#2004-2855 (Harris)

18By way of reply, the Employer noted that the common elements of these cases are not just the assault of October 5, 2012. The Union’s particulars set out assertions regarding Ms. McClelland’s disciplinary history and what steps the Employer ought to have taken in light of that history. Simply put, there are many matters of fact that overlap in the grievances of Ms. Ward and Ms. McClelland.

DECISION

19The Union, on behalf of Ms. Ward, noted that the Employer had, at an earlier time, taken the position that the Union would bear the onus to prove that an assault had taken place against Ms. Ward. Accordingly, it asserted it could not be said by the Employer that there was a common fact between these two cases. When questioned on this point, the Employer acknowledged that this had been its position in the matter as the issues proceeded to hearing before Vice Chair Abramsky. However, it quickly acknowledged that if these matters are consolidated before this Board, that position could and would no longer be sustained. Indeed, it was agreed by the Employer that it will go first with its case against Ms. McClelland and it will bear the onus to prove that Ms. Ward was assaulted by Ms. McClelland.

20After considering the submissions of the parties and the Board’s jurisprudence, I am of the view that these matters should be heard together because the test set out in 3(a) and (b) have been met. There are common questions of fact, perhaps law, and it is apparent that the “relief claimed in them arises out of the same transaction or occurrence”.

21There can be no doubt that the incident of October 5, 2012 is at the very heart of both grievances. Facts surrounding and following this event are not only common but are integral to both matters. That commonality leads me to find that the matters should be heard together.

22As is often the case when a request for consolidation request is considered by this Board, the risk of inconsistent findings of fact are uppermost as a rationale. These two cases are inextricably interwoven. The facts that gave rise to the Employer’s discharge of Ms. McClelland are the very facts that will be relied upon by Ms. Ward in her grievance. It would be detrimental to the parties if there were differing findings of fact regarding the incident that took place on October 5, 2012.

23The Union, on behalf of Ms. Ward was concerned about her being involved in a process with the “perpetrator” of her assault. I understand that concern. However, as noted in Re Upson, (supra) in the event that these two matters were litigated separately, there would still be instances where they would both in the same hearing room having to confront each other.

24I have found that these matters should be “heard together” and not consolidated. As set out in Re CAW-Canada and Dresser Canada Inc. [1987] OLRB Rep. October 1234 (Surdykowski) as cited in Re Upson (supra):

Strictly speaking, the effect of a consolidation is to fuse two or more proceedings into one. Accordingly, consolidation will only be appropriate in circumstances where there is an identity of parties and issues in two or more proceedings. The term has come to be used somewhat more loosely so that “consolidation” may be appropriate where the parties and issues are substantially the same. Technically, it is more appropriate, in such circumstances, that the matters be “heard together” rather than “consolidated”. When matters are heard together, they retain their individual identities but the evidence and representations of the parties with respect to all matters in issue in all the proceedings are heard at one time by one trier of fact and law.

25As in Re Upson, (supra) while the parties are the same, the interests of the grievors are not. Indeed, they are almost completely opposite. Given those differing interests, I am of the view that it is more appropriate to have these matter retain their own identities but will be heard together.

26The dates for hearing in the McClelland have been set and were shared with Mr. Biliski at the conclusion of the arguments on the motion. In the event that there are any problems with the agreed upon dates, Mr. Biliski should notify the Board as soon as possible.