GSB# 2020-0844; 2021-1744; 2021-2716

UNION# 2021-0429-0002; 2021-0430-0005; 2021-0430-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Moore et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Public and Business Service Delivery)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

James Craig Morrison Watts Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 2, 2023

Decision Production Order

1In very general terms, the grievors allege that the workplace is toxic and that they have been subjected to workplace harassment, inappropriate treatment, bullying, and micromanagement.

2The parties have devoted a considerable amount of time to addressing a number of preliminary issues with the goal of ensuring that the hearing on the merits proceeds in an effective and efficient manner. On June 2, 2023, a hearing took place to address outstanding production requests.

3As part of the parties ongoing efforts to address preliminary issues in a constructive manner, the parties requested a consent order to address most, but not all, of the requested production. That consent order is set out below.

4Despite agreeing on most of the terms of the consent order below, the parties were unable to agree on whether the Employer was required to produce a document entitled the “Workplace Culture Review” (“the Workplace Review”). The Workplace Review was carried out by a third party at the request of the Employer

5The Employer argued that the Workplace Review was not arguably relevant and that I should not order it be produced. In addition, the Employer indicated that ordering the production of the Workplace Review could be detrimental to the workplace culture

6The Employer noted that the Workplace Review was not a formal review, that no employees were required to participate, and that it did not involve any additional actions by the Employer or result in any discipline for any employees.

7According to the Employer, the Workplace Review stemmed from an unsubstantiated WDHP complaint. Employees were invited (not required) to talk to the assessor who wrote down what she was told and then made some suggestions about to improve the workplace culture. Finally, the Employer noted that at no time did it tell the Union that it would be provided with a copy of the Workplace Review. Rather, the Employer indicated that it would provide the Union with a summary of the Workplace Review.

8In the event that I found the Workplace Review to be arguably relevant, the Employer argued, in the alternative, that I should order that it only be produced to Counsel to the Union.

9The Union argued that the Workplace Review was arguably relevant. According to the Union, the Workplace Review flowed from management being made aware that some employees were complaining about the workplace culture, about relations between differing groups of employees and relations between certain employees and management. The Union submits that those issues are related directly to what the grievances are about and that the Workplace Review was part of the Employer’s response to the workplace culture issues more broadly. In short, the Union took the position that the Workplace Review flows directly from and is directly related to allegations of bullying, harassment and people not getting along and is relevant to the case at hand.

10In response to the Employer’s alternative position, the Union argued that if I determined the Workplace Review was arguably relevant, then I should order it produced without any restrictions.

11Having considered the submissions of the parties, I am satisfied that the Workplace Review is arguably relevant. I agree with the Union that the Workplace Review appears to flow from, and address (or at a minimum shed some additional light on) the issues raised in these grievances. As such, I am ordering that it be produced to the Union.

12That being said, in the circumstances of this case, I am also satisfied that ordering the Workplace Review to be produced without any restrictions is not appropriate at this time. I have reached this conclusion for two reasons. First, based on the submissions of the parties, it is clear that the workplace culture at issue in these grievances is deeply fractured. Ordering the production of the Workplace Review may very well cause additional harm and divisions.

13Second, it is still open to the parties to try to resolve these grievances without further litigation. Producing the Workplace Review without limitations could undermine any such attempts at settlement.

14Accordingly, (and as set out below) I am ordering the Employer to produce a copy of the Workplace Review to Counsel to the Union and to Ms. Robin Lostracco (the Grievance Officer assigned to this file for the Union).

15In the event the parties are unable to resolve these grievances, either party may make additional submissions on the extent and scope of further disclosure of the Workplace Review at that time. As such, the limitations on the production of the Workplace Review are preliminary and subject to change (or not) upon further submissions by the parties.

16Finally, as is the case with all production, the parties to whom the Workplace Review is produced are subject to the implied undertaking rule and cannot use the Workplace Review for any purpose collateral or ulterior to the resolution of the issues raised in these grievances. To be clear, the parties to whom the Workplace Review is produced are directed not to share, discuss or communicate the contents of the Workplace Review to anyone who has not received a copy.

ORDER

1. The Employer will provide a response to the Union particulars (provided by way of correspondence dated April 12, 2023) by no later than June 9, 2023.

2. The parties will exchange all arguably relevant documents related to the particulars referred to above by no later than July 14, 2023

3. The Employer will produce the following documents (in whatever form they may exist):

a. the WHDP complaint made by Jennifer Moore;

b. any and all Employer policies related to harassment and respectful workplaces in place at the relevant times; and

c. records of any training with respect to harassment and respectful workplace completed by Ms. Patti Norman, Ms. Lynn Tisdale and Mr. Stephen McGrisken.

4. The Union will provide attendance and sick leave records for the grievors for 2021, 2022 and 2023. The Union will advise the Employer if there are any such records they cannot retrieve. If there are any such records, the Employer will then retrieve them and produce them to the Union.

5. Subject to the conditions set out at paragraphs 11-16 above, the Employer will produce a copy of the Workplace Review to Counsel to the Union and to Ms. Robin Lostracco.