GSB#2013-2620

UNION#2013-0108-0114

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Kennett)

Union

• and -

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

Employer

BEFORE

Gail Misra

Vice-Chair

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Ferina Murji Ministry of Government Services Legal Services Branch Counsel

Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel

HEARING

September 2, 2014

Decision

The Issue

1This is an application by the Union to consolidate two grievances filed on behalf of Rick Kennett. The Ministry (the “Employer”) resists the consolidation request.

The Background

2Rick Kennett (“Kennett” or the “Grievor”) has two grievances which the Union asserts arise out of the same set of circumstances, and which should therefore be consolidated before me and heard together. The first grievance, dated September 24, 2013, claims that the grievor was unjustly disciplined when he was given a 20 day suspension on September 23, 2013 for allegedly throwing a ‘wet floor’ sign at an inmate who was being escorted. On the grievance form, the remedy sought is the removal of all discipline, and to be made whole in all respects, including any missed overtime opportunities. At the hearing the Union clarified that it is no longer seeking to have all discipline removed, but rather it will be arguing that the level of discipline imposed in this instance was excessive, and will be seeking to have it reduced. The Union intends to argue that the Employer imposed such a harsh penalty based on its anti-union animus against the Grievor, who is a long time union activist.

3The second grievance that the Union would like consolidated with the discipline grievance is dated January 14, 2014. It claims that the Employer had publicized the Grievor’s discipline on the Public Correction Computer drive. The remedy sought is 80 hours of compensating time. The Union intends to argue in this grievance too that the Employer was motivated by its allegedly anti-union animus against the Grievor, and thus caused the publication of the Grievor’s discipline. This grievance is characterized as a privacy breach issue because a chart listing the Grievor as having been on a paid and an unpaid suspension for ‘assault on inmate subject’ was accessible on line to at least one, and likely more, staff outside the Grievor’s home facility.

4The discipline grievance has been referred to me for hearing (GSB File #2013-2620), and it was at the commencement of the hearing into that matter that the consolidation motion was made. Hence, at this stage of the proceeding I have heard no evidence. The parties have not agreed on any facts that may be relied upon in reaching a decision on the consolidation motion. As such, in reaching this decision I have reviewed the grievances and a screen shot of a document that is purported to have been made broadly available in alleged breach of the Grievor’s privacy.

Arguments

5There was general agreement between the parties that in an application for consolidation of proceedings the Board’s Rules of Procedure set out the relevant considerations. Rule 3 states as follows:

3. Consolidation of Cases

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 other of them.

6The Union advised that while the privacy breach grievance has been referred to arbitration, no date has been set for its hearing. It argues that consolidation of the two grievances would be appropriate because the Union will be arguing that both the quantum of discipline and the privacy breach were motivated by the Employer’s animus against Kennett. According to the Union, Kennett has been active in the Union since he was first hired. He has apparently been a steward, vice president and president of Locals, and has also been an acting Staff Representative for OPSEU. The Grievor was apparently named by the Employer as a responding party to an unfair labour practice complaint at the Ontario Labour Relations Board at some time in the past.

7According to the Union, the discipline and privacy breach grievances are all part of the same narrative and arise out of the incident that led to the discipline. As such, it is argued that both grievances should be heard by the same decision-maker, and that doing so would expedite the proceedings, avoid repetition of evidence, and avoid the possibility of having different findings of fact regarding the anti-union animus evidence.

8The Employer argues against consolidation of the two grievances on a number of bases. Firstly, the Employer urges me to consider that I am only seized of the discipline grievance, and that defines my jurisdiction.

9Secondly, it states that there is no similarity between the two grievances: one relates to whether the Employer had just cause to impose the 20 day suspension; the other relates to whether the Employer breached the Grievor’s privacy when a chart listing the Grievor as having been on a paid and an unpaid suspension for ‘assault on inmate subject’ was inadvertently posted to a drive that was accessible to a broader audience. The Employer reserves the right to argue that there is no prima facie case in the privacy breach grievance, and/or that the issue is moot.

10In any event, according to the Employer, Kent Milligan prepared the document in question for his own use while he was in management at the Elgin-Middlesex Detention Centre, where the Grievor was employed, and that at that juncture it was password-protected. Apparently when Mr. Milligan was transferred to the Stratford Jail, his files were supposed to have been made accessible to him at his new location. However, according to the Employer, the government’s IT department inadvertently made the switch without also moving the password-protected status of the document, thus making it readable by others. The Employer will argue ultimately that there was no anti-union animus motivating its representatives to cause the privacy breach.

11Thirdly, the Employer argues that the grievances do not have questions of fact or law in common, nor does the relief sought in each grievance arise out of the same transaction or occurrence. While conceding that the privacy breach grievance has its genesis in the disciplinary matter, the Employer argues that is simply a coincidence, and that the privacy breach could have been about anything related to the Grievor.

12Finally, according to the Employer, there are no compelling reasons for the Board to consolidate the two grievances. It argues that it would be inefficient to have to deal with a discipline grievance, in which the employer bears the onus, at the same time as having to deal with the Union’s privacy breach grievance, in which the Union bears the onus. According to the Employer, even on the one common issue of the Union’s claim of anti-union animus, it would likely be calling evidence through different individuals in each grievance: management in the disciplinary grievance, and corporate IT in the privacy breach grievance.

13Both parties relied on jurisprudence which they asserted supported their respective positions. I have read and considered all of the case law provided. In reaching my decision I will only be referring to those decisions upon which I may rely. As was clear from my review of the jurisprudence, each case in which the issue of consolidation arises must be decided on its own particular set of facts or circumstances. As such, while the decisions were helpful generally for their annunciation of the principles or factors to be considered in reaching a decision on whether a motion for consolidation should be granted, the facts of each case were sufficiently different as to be of limited utility.

Decision

14As is obvious from a review of Rule 3 itself, I have the jurisdiction and the discretion to decide whether to consolidate proceedings. As such, there is no real question regarding my jurisdiction in that regard in this motion. In considering motions to consolidate proceedings before the Grievance Settlement Board, and in addition to Rule 3 outlined above, the Board may also consider such other factors as efficient use of resources, cost savings, avoiding conflicting findings of fact, the orderly and efficient disposition of grievances, and whether either party would be prejudiced by an order to consolidate (see OPSEU (Ferraro) and Ministry of Community, Family and Children’s Services, GSB# 1200/00 (Mikus), citing Smith and Ministry of Correctional Services, GSB No. 545/94).

15While the two grievances in question in this motion are different in character, there is little doubt that they are at the very least connected by the fact of the disciplinary suspension of the Grievor. The first grievance disputes the quantum of the penalty for the Grievor’s allegedly throwing a ‘wet floor’ sign at an inmate; and, the second grievance appears to complain that the Employer breached the Grievor’s privacy when a manager who had been involved in that disciplinary event had somehow made available to a larger audience information about the Grievor having been first suspended with pay, and then without pay, for the alleged assault on the inmate.

16The second thread connecting these grievances is that the Union has put the Employer on notice that it intends to argue that the Employer excessively disciplined the Grievor, and then made public the fact that he had been disciplined, in retaliation against Kennett on the basis of his union activity. Hence, the Employer’s motive is alleged to be the same in both cases.

17In light of the above-noted connections between the grievances I am satisfied that there are sufficient questions of law and fact in common between these two grievances to consider hearing them together.

18As well, the two grievances appear to arise out of the same incident or occurrence. It seems likely that but for the Employer’s investigation into the alleged inmate incident, Kennett would not have been suspended with pay during the investigation, and following completion of the investigation, would not have been suspended for 20 days as discipline for his role in the incident. Had he not been suspended, paid or otherwise, Mr. Milligan would not likely have put Kennett’s name on his spreadsheet regarding workers who were under suspension. It is the release of that spreadsheet that is the subject of the second grievance regarding the alleged breach of the Grievor’s privacy. As such, the two grievances appear to arise out of the same occurrence.

19Although the Employer vigorously opposed the consolidation of the two grievances, it did not claim any prejudice would result should the two be consolidated.

20In all of the circumstances I am of the view that hearing these two grievances together would lead to a more efficient use of both the Board’s and the parties’ resources, both in terms of time and cost savings. As this is not a unique situation, there should not be any procedural complications that cannot be worked out to ensure that each party has its full rights to call the evidence it needs to, and has full opportunity to test the case of the other side.

21Accordingly, the motion to consolidate the two grievances in question is granted. The parties should consider between themselves the order of proceeding, and should they be unable to agree, may seek direction from me prior to the next day of hearing.