GSB#2013-3791; 2014-3127
UNION# 2014-0234-0021; 2014-0234-0452
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Plouffe)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Daniel A. Harris
Arbitrator
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Felix Lau Treasury Board Secretariat Legal Services Branch Counsel
HEARING DATES
October 7, 2015, December 8, 2016 and May 16, 2017
DECISION
1This matter came on for hearing on October 7, 2015, December 8, 2016 and May 16, 2017. At this stage, we are dealing with requests for production.
2The merits of these matters are rooted in an allegation in that Mr. Plouffe, a correctional officer (CO), was assaulted by a female correction officer in May 2010. The allegation is that she had been denied overtime. She blamed the grievor and kicked him. A further allegation of fact is that she assaulted another CO while on escort duty.
3Her overtime dispute was said to have flared up again in January 2014 when she, and then her husband, had altercations with the grievor. In the result, the grievor filed these two grievances and a number of occurrence reports over the next number of months regarding allegations of their purported, continued misbehavior.
4The grievor is said to have received a number of assurances from management that he would be kept apart from this purportedly antagonistic female CO.
5There are two grievances; one against the purported threats by the female CO’s husband in January 2014 and one in September 2014, when it is alleged that she came into the control module to provoke him.
6The grievor applied for, and was granted, Worker’s Compensation in February 2015. There may be a connection with the foregoing narrative, based on the May 2010 alleged assault and the alleged ongoing bullying since January 2014.
7The Employer’s opening position is that the grievor ought to have filed occurrence reports in 2010 regarding the alleged assault, yet nothing was forthcoming until January 2014.
8In or about August 2015 the grievor received from the WSIB recognition for a post-traumatic stress disability, which has been appealed by the Employer. Issues have been flagged with respect to the impact on these proceedings of any WSIB award.
9As for production of documents from the Employer to the Union, the Union says that there is some indication of differential treatment on a gender basis in cases of assault. In response the Employer suggested that such a distinction may not be inappropriate.
10The Employer agreed to some of the Union’s requests for production. The contested matters were dealt with at the hearing on May 16, 2017 and fall into two categories. The disclosure requests by the Union are set out in correspondence dated November 29, 2016.
The first category was documentation relating to complaints made about other incidents that did not involve Mr. Plouffe, the grievor nor the two COs he has complained about, H. Murchison and D. Murchison.
The second category related to documents relating to any other complaints made by other employees against the Murchisons.
11The issue is whether these materials are arguably relevant.
12I have carefully considered the submissions made by the parties. The argument advanced by the Union is that there was differential treatment of the grievor as opposed to the situations set out above in its letter of November 29, 2016. That differential treatment is on the basis of gender. That is, because a female CO and her husband harassed the grievor, the Employer did not treat the situation as seriously as it would have if a male CO had harassed a female CO.
13At this stage of the proceedings, the Union’s claims are devoid of the level of granularity that would permit a conclusion that the situations enumerated in the letter of November 28, 2016 are at all comparable to the facts alleged here. Further, the allegations amount to a claim that the Employer has a propensity to such discriminatory treatment without grounding the claim in any specific particulars as would allow the order for production sought.
14The Union would be free to call other members of the bargaining unit to establish the facts in issue in these grievances, but the production sought would mire these grievances in unrelated matters. In my view the probative value of such production is far outweighed by its prejudicial effect in unduly extending these proceedings and does not reach the threshold of being arguably relevant. The production request set out in the first category from the Union’s letter of November 29, 2016 is denied.
15The second category from the letter relates to specific materials that arguably may establish the extent of the Employer’s knowledge of incidents involving the two COs who are central to the grievances allegations and may arguably go to the issue of the Employer’s obligation to provide a harassment and violence free workplace. The Employer is hereby ordered to produce those documents.
Issued in Toronto this 22nd day of November, 2017.