GSB#2013-2789

UNION#2013-0362-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bharti)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Ian Anderson

Vice-Chair

FOR THE UNION

Billeh Hamud Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

November 3 and 6, 2014

Decision

1The issues addressed by this decision are succinctly stated by the submissions of the Employer filed on November 3, 2014.

1. The Employer raises further preliminary objections regarding the admissibility of portions of the Union's particulars and its additional particulars dated October 5, 2014 (which were reproduced at paragraph 7 of the Board's decision dated October 28, 2014).

2. This preliminary objection is with regard to each of the five (5) paragraphs in the Union's latest particulars that reference Scott Jones as well as each reference in each of the three different versions of the Union's particulars that reference the MOU [Memorandum of Agreement] dated March 12, 2014.

3. The Employer's position is that (a) any allegations regarding Scott Jones are untimely; (b) any allegations regarding Scott Jones are an abuse of process; and (c) the Union is relying on a without prejudice MOU.

2In its response, the Union states it takes no position with respect to whether the allegations with respect to Scott Jones are untimely or whether the fact that the MOU was entered into on a without prejudice basis precludes it from relying upon the fact that the Employer permitted the Grievor to work in Ottawa from March 2014 until October 31, 2014. It disagrees however that the allegations with respect to Mr. Jones are an abuse of process. Further, if the Employer's motion is allowed, the Union states:

[I]f the Employer will be adducing evidence through its witnesses that they cannot accommodate the Grievor in the Greater Ottawa Area because his job duties require him to be physically present in Peterborough, then the Union takes the position that it should be allowed to adduce reply evidence and rely on past evidence of accommodation in the Greater Ottawa Area, including conversations between the Grievor and Mr. Jones, to rebut the Employer's evidence.

3The allegations with respect to Mr. Jones are untimely for the reasons stated by the Employer in its submissions. This grievance was filed on March 6, 2013. Particulars referencing Mr. Jones were filed by the Union on October 5, 2014. Mr. Jones retired on January 31, 2009. To the extent that statements made by Mr. Jones are said to constitute separate breaches of the collective agreement, grievances with respect to those breaches are clearly untimely. To the extent that those statements are advanced to establish a course of conduct, this Board has adopted a general "rule" restricting such evidence to the preceding three years: Re Brown, 2011-0583, February 23, 2012, (Dissanayake). This period is sufficiently long to permit the Union to establish a pattern but not so long as to make it impossible for the Employer to defend. This rule is not hard and fast and may be departed from where circumstances warrant. In this case, the Union has identified no such circumstances. Accordingly, the allegations referencing Mr. Jones are struck. Given this conclusion, I need not address the alternative argument that the allegations with respect to Mr. Jones are an abuse of process.

4The Grievor worked in Ottawa from March 2014 to October 31, 2104 pursuant to a MOU which was expressly entered into on a without prejudice or precedent basis. In the decision dated September 11, 2014 with respect to an application for interim relief in this matter, I stated it would be inimical to good labour relations to permit the Union to rely upon the period of March 2014 to October 31, 2014 to establish the status quo was that the Grievor was working in Ottawa. Similarly, it would be inimical to good labour relations to permit the Union to rely upon that period of time to establish that the Grievor can perform his job duties from Ottawa. (I also note that the Employer's position is that while the situation was not ideal, for compassionate reasons it agreed to temporarily permit the Grievor to work in Ottawa and to this end assigned him a special project that could be performed there. By contrast, in this grievance, the Grievor seeks permanent accommodation allowing him work in Ottawa.)

5With respect to the Union's alternative argument, whether evidence with respect to statements allegedly made by Mr. Jones can be lead in reply will of course depend on the evidence led by the Employer in responding to the Union. However, I would note that the issue before me is not whether the Employer did or could have accommodated the Grievor by permitting him to work in Ottawa during the time that Mr. Jones was his supervisor. The issue before me is whether the Employer can accommodate the Grievor by permitting him to work in Ottawa at the time of the grievance and indefinitely into the future, assuming that it is legally required to provide such accommodation. The Union has failed to identify any basis on which it could be said that evidence with respect to what took place more than three years before the date of the grievance is of sufficient probative value to be considered as part of its case in chief, and accordingly I have allowed the Employer's preliminary motion to disallow such evidence. It appears to me that the mere fact the Employer adduces evidence that it could not provide permanent accommodation to the Grievor at the time of the grievance and cannot provide such accommodation indefinitely into the future will not render admissible in reply by the Union evidence which I have ruled is inadmissible in chief.