GSB#2019-0452; 2019-0453; 2019-0454
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and Professional Crown Employees of Ontario (Drawbell)
Association
- and -
The Crown in Right of Ontario (Ministry of the Attorney General)
Employer
BEFORE
Tatiana Wacyk
Arbitrator
FOR THE ASSOCIATION
Nadine Blum (Counsel) Goldblatt Partners LLP Emma Landy (Dispute Resolution Officer) Association of Management, Administrative and Professional Crown Employees of Ontario
FOR THE EMPLOYER
Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel
HEARING
May 29, 2020
Decision
1This matter involves three consolidated Disputes:
December 18, 2017 — Alleged breaches of Articles 2, 3, 6, 7, 15.5.9, 30, Respectful Workplace Policy in relation to the harassment and discrimination the Complainant experienced at the hands of his manager, and the Employer's processing of an unreasonable WDHP complaint, filed in reprisal for the Complainant's enforcement of his Collective Agreement rights.
January 24, 2019 — Alleged breaches of Articles 2, 3, 6, 15.5.9, the Respectful Workplace Policy in relation to the Employer's failures to follow the WDHP procedure and failures to address the Complainant's reprisal allegations in an appropriate or timely manner.
April 15, 2019 — Alleged breaches of Articles 2, 3, 20, Respectful Workplace Policy in relation to the Employer' s letter of reprimand dated April 4, 2019.
2This decision addresses AMAPCEO’s request for production of all documentation in the WDHP file in relation to the WDHP investigation conducted pursuant to the WDHP complaint against the Complainant.
3The request is resisted by the Employer.
AMAPCEO’S POSITION:
4AMAPCEO points out that two of the Disputes take issue with the initiation as well as aspects of the WDHP Investigation.
5Specifically, AMAPCEO alleges the initiation of the WDHP Investigation constitutes unjust discipline, as it was a reprisal in response to the Complainant’s request to AMAPCEO to file a dispute on his behalf regarding the actions of his Manager.
6In addition, AMAPCEO maintains that faced with the pending Dispute, the Employer went to extraordinary and absurd lengths to gather examples of alleged wrongdoing from colleagues. This resulted in the Investigation addressing allegations going as far back as 15 years (2002) – far beyond the usual 6 month scope of WDHP investigations.
7AMAPCEO also indicates it has now received a copy of the Investigative Report, and while it understands the initial allegations came from five different people, it appears the number of complainants/witnesses and allegations “ballooned” to dozens more.
8AMAPCEO articulated its concerns regarding the initiation of the WDHP Investigation and the manner in which it proceeded in one of its JRP submissions as follows:
The first issue is with the complaints against Steven themselves. It is unclear how they were generated or came to the attention of the Employer and the majority of them are completely out of time. The complaints seem contrived, solicited, some of them don’t seem appropriately within the scope of the WDHP policy, and totally stale. This matter is addressed by the first dispute…
9AMAPCEO also maintains the Employer’s filing of the WDHP complaint continued the harassment and discrimination the Complainant had been experiencing, and further poisoned the work environment – in that he was forced to remain in the office with what AMAPCEO characterizes “this witch hunt” hanging over his head for close to two years.
10AMAPCEO further submits the Employer has provided no explanation of the excessive delay in the issuance of the Investigative Report – which took five times the timeline set out in the Respectful Workplace Policy. AMAPCEO submits this excessive delay constitutes an unreasonable exercise of management rights, and further discipline without clause.
11AMAPCEO also pointed to documentation it received during the document exchange in this matter, which it suggests demonstrates the Employer was aware of, and indeed had its own concerns regarding issues related to the investigation.
12AMAPCEO submits it is entitled to know how the investigation arose, and expanded, as well as the instructions the external investigator received from the Employer in this regard.
EMPLOYER’S POSITION
13The Employer indicated that its evidence will be that the genesis of the investigation occurred many months before it became aware of the Complainant’s pending Dispute – and resulted from a number of employees coming forward with complaints about the Complainant.
14The Employer maintained AMAPCEO’s request was clearly premature as no discipline had been imposed, as yet, as a result of the WDHP Investigation. Accordingly, the Employer submitted the issue of whether the events investigated during the WDHP occurred is a collateral issue, and not before me in these consolidated Disputes.
15Rather, the Employer characterized AMAPCEO’s request as an attempt to “peak behind the curtain” and subvert the discipline process.
16The Employer concedes it had concerns regarding, and attempted to rectify, the delay in the completion of the Investigation. It maintains, however, that as the Investigation was being conducted by an external Investigator, this was something beyond its control.
17In any event, the Employer submitted that the caselaw is clear that failure to comply with the Respectful Workplace Policy timelines is not grievable, unless a breach of the Collective Agreement can be demonstrated.
18The Employer referred to the following decision of Arbitrator Dissanayake in
Ontario Public Service Employees Union (Lupiani) v Ontario (Transportation), 2018 CanLII 109244 (ON GSB) regarding the factors to be considered in determining whether disclosure is appropriate:
9The arbitral law is (sic) on the factors that govern a request for disclosure is settled, and is summarized in the often quoted decision in Re West Park Hospital, (1993) 1993 CanLII 16806 (ON LA), 37 L.A.C. (4th) 160 (Knopf). At p. 167, the Board wrote:
Where the disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition” Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board should be satisfied that disclosure will not cause undue prejudice. In this regard, the criteria set out in the Desmarais and Morrissette case are applicable in terms of weighting whether or not privileged information should be protected. (Page. 167)
10Whether to order production is a matter of arbitral discretion. The arbitrator must balance the interests of the party opposing production, including any undue prejudice in complying with an order for production against the interests of the requesting party in having a fair hearing and its need of the documents sought to be able to adequately present its case. Also, the arbitrator must consider whether the potential probative value of the document is limited and outweighed by the effort and costs that would be imposed on the other party in gathering the documents.
19The Employer submitted that in this instance, a balancing of the parties’ interests requires weight be given to the fact that disclosure of the Investigator’s notes would clearly be prejudicial to the Employer’s discipline process.
20The Employer reiterated that there was no dispute before me to which the Investigator’s notes are relevant, as the issue was not whether the investigated allegations were true, but rather the Employer’s actions in regard to them. (See also: Ontario Public Service Employees Union (Hunt et al.) v Ontario (Attorney General), 2004 CanLII 55312 (ON GSB).)
ANALYSIS
21I do not understand AMAPCEO’s production request to relate to the veracity of the investigated complaints. Nor am I persuaded that production of the Investigation notes would be prejudicial to the Employer’s discipline process.
22Rather, I find AMAPCEO’s production request relates to AMAPCEO’s consistent and articulated allegations in these consolidated Disputes, that the Employer’s initiation of the WDHP investigation was a reprisal against the Complainant, and conducted in a manner which reflects that motivation.
23In that context, I find the Investigator’s notes to be arguably relevant to the issues before me, and ought to be produced.
DISPOSITION:
24Accordingly, the Employer is ordered to produce all documentation in the WDHP file in relation to the WDHP investigation conducted pursuant to the WDHP complaint against the Complainant.
25The production is to be completed forthwith, and by no later than June 15, 2020.
Dated at Toronto, Ontario this 1st day of June, 2020.