GSB# 2022-12216

UNION# 2023-0310-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gold)

Union

• and -

The Crown in Right of Ontario (Ministry of Labour, Immigration, Training and Skills Development)

Employer

BEFORE

Christopher Albertyn

Arbitrator

FOR THE UNION

Adam Veenendaal Morrison Watts Hurtado Counsel

FOR THE EMPLOYER

Debra Kyle Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

March 14, 2024

Decision

1This matter concerns a grievance challenging the termination of the Grievor’s employment. The matter is to be heard on May 24, 2024. Prior to his termination the Grievor was employed as an Occupational Health & Safety Inspector out of the Employer’s Central West region.

2A production order was made in a Decision on July 5, 2023. Subject to conditions set out in the Decision, the Employer was required to provide to the Union with the Investigation Report and other documents, including the telematics data of the Grievor’s vehicle use. The Investigation Report informed the Employer’s decision to terminate the Grievor.

3In that Decision I remained seized to address any disputes between the parties regarding production. Such a dispute has arisen.

4During 2019 and 2020 the Employer ran a project across Ontario focused on the “underground economy” (UE) in the construction industry. Certain inspectors were assigned to be part of this project, among them the Grievor.

5Towards the conclusion of this project, the Employer investigated the claims for overtime pay by UE inspectors, across Ontario, for their work during 2019 and 2020. The investigation involved a review of available records (but not telematics data) for each UE inspector to determine whether there was cause for concern regarding their overtime claims. If there was, further investigation followed. Telematics data was retrieved and reviewed for those inspectors who were screened in for further investigation, and for whom the readily available records did not explain their observed behaviour. The Grievor was among the UE inspectors screened in for further investigation.

6The Employer explains the basis for its decision to terminate the Grievor. The Grievor’s role was to use his Ministry vehicle to conduct his UE inspections for approximately 4-5 hours on a weekend. Despite this, the Grievor consistently claimed 8 hours of overtime, irrespective of the number of hours actually worked. This, the Employer contends, was fraudulent overreporting by the Grievor of between 3-4 hours on each occasion.

7There were 26 construction inspectors, like the Grievor, who worked out of the Central West region. Of them, only 14 did the UE work, like the Grievor, outside of regular work hours.

8Of those performing such UE work out of the Central West Region, eight were screened for further investigation. Upon being notified thereof, three resigned. The remaining five, including the Grievor, were further investigated and later terminated for claiming overtime pay for time not worked.

9The Grievor believes that a comparison between his telematics data and that of others who, like him, were inspectors working out of the Central West region, will serve to exonerate him from the Employer’s misconduct claims since, he maintains, all were operating as he was.

10Initially the Union asked for production of the telematics data of all Central West inspectors performing construction field visits in 2019 and 2020, whether part of the UE group, or not. This request was altered in the Union’s reply submissions. In the reply, the Union has clarified that it seeks the telematics records for just six inspectors who work out of the Central West district. These six were not part of the UE group, and so were not part of the investigation. The Union submits the documents are arguably relevant: Ontario Liquor Boards Employees' Union v. Ontario (Liquor Control Board), 2006 CanLII 17540 (ON GSB).

11The Employer has declined to provide the telematics data of the Grievor’s colleagues.

12The Employer argues that there is no evidentiary basis for the production request, and that the Union’s request to have the telematics data of the six inspectors is speculative and a “fishing expedition” to try to build a case for which there is no foundation.

13The Employer also argues that telematics reports, by themselves, are not determinative of anything. They show only the location of a Ministry vehicle at a specific point in time. They do not show whether the individual inspector was with the vehicle, whether the inspector was working with another colleague, whether the inspector was claiming time for working when the vehicle was at home, or whether the inspector was working at all. On their own, the telematics reports will not show that others were conducting field visits as the Grievor was, and so those reports will not be determinative of anything that is germane to the Grievor’s termination. Consequently, the Employer submits that the cost and expense of retrieving and providing the records requested are unnecessary, given that the reports, on their own, can have no probative value.

14Furthermore, the Employer argues that the telematics reports of other inspectors are not relevant to the Grievor’s matter; and, to the extent that any other inspector engaged in the same behaviour as the Grievor, those individuals have been disciplined appropriately based on the level of their misconduct.

15In reply, the Union relies on Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2019 CanLII 22225 (ON LA) (Slotnick), in which the TTC was ordered to produce documents of two colleagues of the grievor (terminated for benefits fraud) who were not discharged, despite themselves being found to have participated in benefits fraud.

16For a production order to be made, the documents sought must be shown to be arguably relevant. A basis for the production claim must be made, beyond a mere belief that a particular state of affairs existed. The case relied on by the Union, the TTC case, above, is instructive. There the arbitrator was given uncontradicted evidence that two employees who had committed the same misconduct as the grievor had been given a more moderate penalty than discharge. The discrepancy in treatment of the grievor and the other two employees was manifest. Arbitrator Slotnick ordered production of the six documents sought. These documents were patently relevant to the issue of unequal discipline for the same misconduct.

17The circumstances in the present case are quite different from those in TTC case. Here there is no foundation for the claim that other inspectors acted like the Grievor, or that the Employer knew of any misconduct by them. To require the Employer to produce the telematics reports for the two-year period, 2019-2020, for the six inspectors who were not involved in the UE project has not been grounded in any firm factual allegation. The only purpose of such an order would be the hope that something might be revealed that could provide the basis of a case for the Grievor. But that is not the purpose of production. The purpose is not to enable a party to make a case for which they have no supporting evidence.

18The Employer also explains that the investigation that led to the Grievor’s termination was of employees who were engaged in the UE project. The six inspectors the Grievor wishes to bring into consideration in this case were not part of that project. Their conduct is therefore remote and unrelated to the issues that apply to those who were disciplined for their misconduct on the UE project.

19Finally, there is the problem, were the telematics reports of the six inspectors produced, that would not be probative of any misconduct without a much fuller investigation of how the reports related to the work of each of those six individuals. Exploring that would open six wholly separate inquiries that would be remote from the issues involved in the grievance concerning the fairness of the Grievor’s termination as one of the UE inspectors.

20In these circumstances, the Union’s request for production is denied.