GSB#2015-0353

UNION#2015-0678-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Turpin)

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

Debra McKenna Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL

August 5, 2016

Decision

1Mr. Ian Turpin is a Registered Nurse whose employment with the Ministry was terminated on April 9, 2015. He filed a grievance that alleged his discharge was without just cause. By way of remedy he requests full compensation for losses in addition to reinstatement.

2There have been a number of hearing days into this matter. Currently the Board is hearing from the grievor’s immediate supervisor, Ms. Linda Ogilvie. During the course of her evidence in chief the Employer attempted to introduce Letters of Counsel and two emails given to the grievor in the past. The Union strongly objected to the admission of these documents. Indeed, the Union went so far as to suggest that the documents themselves were so highly prejudicial that the Board should not review their contents in undertaking the determination of this matter.

3It was agreed that this issue would be argued via conference call. Both parties had full opportunity to make submissions and review relevant jurisprudence. During this conference call the Union restated its request that the Board refrain from reviewing the documents themselves due to their prejudicial nature. While the Employer did not agree that this was necessary, it did agree to partake in an exercise following the call to send mutually agreed upon redacted versions of the documents for the Board’s review, if needed.

4This decision deals only with the evidentiary ruling regarding these documents.

UNION SUBMISSIONS

5Ms. McKenna, for the Union, submitted that according to Articles 22.14.4 and 22.14.5 of the Collective Agreement, the Employer is obliged to produce full disclosure at the earliest possible opportunity. The documents at issue in this objection were not given to the Union until March of 2016, after eight days of hearing had been held. At the point the Union was given this disclosure much viva voce and documentary evidence was already before this Board. The Letters of Counsel are dated March 21, 2012 and July 31, 2012.

6It was noted by the Union that the letter of termination given to the grievor on April 9, 2015 contained fifteen allegations regarding various incidents that took place on August 21 & 26, 2014, September 9 & 12, 2014 and October 2, 2014. There was no reference in the termination letter to the incidents that gave rise to the Letters of Counsel now being sought to be introduced by the Employer. Indeed, there is no reference to conduct of any sort that occurred prior to August 21, 2014. If the incidents referred to in those letters were of such import to the Employer, it could have and should have put them into the termination letter.

7The Union contended that the grievor is entitled to a fair hearing. The Employer cannot, in March of 2016 – for the first time – refer to documents that are highly prejudicial and have no probative value.

8Mr. Turpin had no basis to challenge the documents as they are Letters of Counsel, the Union asserted. Indeed, it is his position that the facts set out within those letters are not accurate. Given his inability to challenge the veracity of the documents it would be highly unfair to allow the Employer to enter the letters into evidence four years after they were issued.

9Ms. McKenna referred to the frequent references in the jurisprudence to the balance to be struck between the probative value of the letters at issue and the procedural fairness to which the grievor is entitled. This Board ought to deny the Employer’s request to admit these documents given the significantly dated allegations, the non-disciplinary character of the letters and the fact that the grievor was foreclosed from challenging the allegations. Further, the Employer ought not be allowed to raise new issues some seven months into the litigation of the unjust dismissal of Mr. Turpin.

10The Union relied upon Re Hotel-Dieu Hospital & ONA (1997), 1997 CanLII 25061 (ON LA), 62 L.A.C. (4th) 164 (M. Picher); Re OPSEU (Patterson) and Ministry of Public Safety and Security) GSB # 2001-0925 (Leighton); Re OPSEU