GSB#2016-2446

UNION# 2016-0286-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gurnick)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Hailey Bruckner Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Andrew Cogswell Liquor Control Board of Ontario Counsel

CONFERENCE CALL

January 9 and 30, 2020

Decision

1This matter was scheduled for a hearing on January 9, 2020 but was rescheduled for two conference calls which occurred on January 9 and January 30, 2020 to deal with various preliminary issues. This Decision deals with the items that were agreed to with Counsel during the conference calls and orders with respect to scope, consolidation, particulars and production.

2The grievance, OPSEU #2016-0286-0005, alleges that the Employer fostered a poisoned work environment relating to allegations of harassment by the Grievor’s manager, Charly Pychel.

3Post grievance, in April 2017, the Grievor was transferred to another store, location #0052. The Union takes the position that this transfer establishes a continuing breach of the Collective Agreement and was done as an act of reprisal against the Grievor. The Employer takes the position that the grievance before me does not properly include the Grievor’s transfer, which occurred six months after the filing of the instant grievance, and objects to inclusion of the transfer as an expansion of the scope.

4The Union has also made a request to consolidate this matter with another grievance, OPSEU # 2017-0268-0008, which deals with a claim that the Employer failed to compensate the Grievor for her time spent participating in a police investigation which related to an incident involving a co-worker and customer at Store location #0052. Having discussed this consolidation request with Counsel, I have determined that I will not consolidate these matters as the grievance #2017-0268-0008 is a separate matter from the claim of harassment and poisoned work environment alleged in original grievance filed, occurred at a different store involving a different manager and relates to a completely different set of facts involving the Grievor’s participation in a police investigation.

5With respect to the Employer’s objection regarding expansion of scope noted in paragraph 3 above, I have determined that it is necessary to hold a preliminary hearing to consider whether the Grievor’s transfer to the other store location should be included as part of the case. I also confirm that the Parties will be permitted to call witnesses at the preliminary hearing to testify about the reasons for the Grievor’s transfer and the Grievor’s belief about why she thinks that the transfer constitutes evidence of continuing harassment by her manager and a reprisal for filing the grievance. It was agreed that this preliminary hearing will be scheduled on March 20, 2020. Depending on the outcome of the preliminary hearing, I may issue other orders regarding production, particulars and remedy to be provided prior to the hearing on the merits.

6In terms of outstanding production requests, the Employer has agreed to provide the following information to the Union, with a copy to the GSB, before the preliminary hearing on March 20, 2020:

• documentation related to any actions taken by the Employer with respect to the Grievor’s manager Charly Pychel referenced in the Employer’s letter to the Grievor dated December 14, 2016

• any LCBO scheduling policies that were in existence at the time of filing of this grievance

• a copy of the Grievor’s employment file limited to one year before the filing of the grievance

7Prior to the preliminary hearing on March 20, 2020, the Union has also agreed to provide any further particulars to the Employer, with a copy to the GSB, summarizing the Grievor’s allegations of harassment and the existence of a poisoned work environment noted in the original grievance Union #2016-0286-0005.

8This matter is scheduled to continue on March 20, 2020 for the purposes of a preliminary hearing on the scope of the grievance. The hearing on the merits is scheduled on June 5 and 11, 2020.