The Canadian Union of Public Employees (the “Union”) filed a Policy Grievance alleging that the Employer misused its management rights by failing to resolve a “toxic work environment” in Fort Chipewyan, contrary to the Collective Agreement. The Employer brought an application for particulars, and the Union brought an application for an in-person hearing to take place in Fort Chipewyan.
The Employer’s application requested an order directing the Union to provide particulars identifying the incidents the Union was alleging established a toxic work environment. The Union argued that the Employer was “well aware of the incidents” and that there were nonetheless sufficient particulars within the investigative report that was attached to the Grievance. The Union also argued that pursuant to the harassment articles of the Collective Agreement, the Employer had a duty to investigate the facts alleged in the Grievance and should not be allowed to avoid this duty by demanding particulars from the Union.
Arbitrator Abells rejected the Union’s arguments and found that the Employer was entitled to know the case it must meet, which includes the “who, what, where and when” of the Grievance’s allegations. In making this direction, Arbitrator Abells considered that the investigative report consisted of a “series of findings and conclusions derived from the interview of 15 witnesses.” The identities and testimonies of the witnesses were not included in the report. Arbitrator Abells directed the Union to provide further particulars, including “what incidents it relies upon, who was involved and when and where they occurred.”
The Union advanced several arguments in support of its application for an in-person hearing. In response, the Employer argued that the costs of an in-person hearing were not justified in the circumstances. Arbitrator Abells found that the nature of the case favoured an in-person hearing. He considered that there were a substantial number of witnesses to testify on behalf of the Union who all resided in Fort Chipewyan and who preferred testifying in person. Arbitrator Abells also considered that the parties had both determined they should negotiate a resolution to the Grievance, which he recognized may be difficult to achieve in the circumstances. Consequently, Arbitrator Abells determined that “the extra costs of an in-person hearing” were an “appropriate investment in a process intended to resolve an allegation of a systematic problem identified in the workplace.”